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L  I  B  R  ARY 

OF   THE 

UNIVERSITY  OF  CALIFORNIA. 

GIFT    OF 


Received 


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nved 
Accessions  No.  4?- .*T.6.tf    S/^//"  A^^. 


THE  VETO  POWER 


THE 


UNITED  STATES. 


WHAT     IS     IT? 


BY  J.  H.  BENTON,  JR. 


BOSTON : 

ADDISON  C.  GETCHELL,  BOOK  AND  JOB  PRINTER, 
No.  55  OLIVER  STREET. 

1888. 


THE  VETO  POWER 


UNITED  STATES. 


WHAT     IS     IT? 


In  May,  1887,  the  Legislature  of  Massachusetts  passed  a 
bill  for  the  division  of  the  town  of  Beverly,  which  was  duly 
presented  to  the  governor,  who  returned  it  to  the  house  of 
representatives  on  the  21st  of  May,  with  the  following  com- 
munication :  — 

I  herewith  return  to  the  house  of  representatives,  where  it 
originated,  a  bill  entitled  "  An  act  to  incorporate  the  town  of 
Beverly  Farms,"  together  with  my  objections  thereto. 

If  it  involved  only  the  question  of  the  division  of  the  town  of 

Beverly,  I  should  hesitate  to  set  up  my  opinion  against  that  of  the 

:ature;  but  under  your  recent  investigation,  now  familiar  to 

iMic,  it  appears  that  very  large  sums  of  money,  altogether 

oportionate  to  the  honest  necessities  of  the  case,  have  been 

and  expended  in  the  promotion  of  the  passage  of  the  bill. 
While,  of  course,  no  member  of  the  legislature  has  taken,  or 
would  take,  money  for  his  vote,  yet  some  $20,000  have  been  spent 
to  indirectly  influence  the  action  of  the  legislature.  It  is  no 
excuse  that  such  things,  or  worse,  have  happened  before  without 
exposure.  This  time  the  abuse  has  been  investigated,  exposed, 
and  rebuked  in  scathing  terms  by  the  committees  of  both  houses. 


I  regard  it  as  my  duty  to  the  commonwealth,  and  to  the  mainte- 
nance of  a  wholesome  public  sentiment  in  behalf  of  legislation 
which  shall  be  above  suspicion,  to  act  upon  the  reports  made  by 
these  committees  and  adopted  by  their  respective  houses,  and  to 
strike  emphatically  at  the  evil  thus  unearthed.  Not  to  do  so  is  to 
excuse  and  encourage  a  monstrously  bad  and  corrupting  practice. 
I  believe  that  the  legislature,  which  had  committed  itself  .-to  the 
bill  before  exposure  of  the  methods  of  its  promotion,  will  agree 
with  me  that  it  is  better  that  the  executive,  approaching  i^;  for  the 
first  time  and  finding  it  tainted  with  offensive  furtherances,  should 
veto  it.  I  cannot  doubt,  too,  that  on  reflection  the  committee 
which  seeks  division,  and  to  which  we  look  for  so  many  of  the  ele- 
ments of  good-citizenship,  will  gladly  sacrifice,  or  at  least  delay, 
any  presept  convenience  for  the  sake  of  an  emphatic  lesson  in  the 
public  behalf. 

If,  as  seems  to  be  true,  both  sides  have  been  guilty  (which 
almost  makes  me  sympathize  with  the  judge  who  wanted  to  decide 
against  both  parties) ,  so  much  the  worse ;  two  wrongs  do  not 
make  a  right.  It  is  a  just  as  well  as  an  equitable  maxim,  that 
those  on  whom  is  the  burden  of  making  out  a  case  shall  come 
with  clean  hands,  and  not  seek  to  excuse  the  lack  of  them  on  the 
ground  that  an  opponent's  are  soiled.  It  seems  a  fitting  oppor- 
tunity to  enforce  the  principle  that,  in  order  to  ensure  legislation, 
the  thing  to  do  is  to  show  a  good  case  on  its  merits ;  and  that  it 
is  not  only  not  necessary,  but  detrimental,  to  rely  on  pecuniary 
influences  such  as  have  been  disclosed  in  the  committee's  reports. 

I  am  sure  that  the  pernicious  system  therein  set  forth  is  offen- 
sive to  nobody  so  much  as  to  the  members  of  the  legislature,  and 
that  you  will  heartily  co-operate  with  me  in  hitting  it  a  blow  in 
the  intersst  of  more  decent  methods,  and  in  furtherance  of  the 
suggestion  in  your  own  reports  on  the  subject  to  which  I  caU 
attention. 

Your  committee  closes  its  report  with  these  words :  "  Legisla- 
tion cannot  be  pure  unless  free  and  untrammelled   by  insidious    , 
influences.     These  influences,  however,  wherever  or  by  whomso- 
ever exerted,  should  be  and  must  be  emphatically  and  sternly  con- 
demned." 

The  senate  committee  says,  "  It  is  to  be  greatly  regretted  that 


there  has  been  a  growing  demoralization  in  the  methods  pursued 
in  promoting  private  bills  and  private  interests  before  the  general 
court,  deserving  the  strongest  condemnation  and  the  most  effect- 
ive remedy." 

"  The  strongest  condemnation  and  the  most  effective  remedy" 
I  can  apply  is  a  veto. 

If  the  system  thus  condemned  is  to  prevail  and  to  be  justified 
by  executive  approval  of  bills  to  which  it  has  been  most  notori- 
ously and  offensively  applied,  then  the  lobbyist  will  understand  it 
is  an  accepted  and  permissible  system,  involving  no  risk  except 
that  of  being  called  hard  names  in  a  report. 

The  reputation  of  the  Legislature  of  Massachusetts  for  hon- 
esty and  probity  is  deservedly  so  high  that  it  should  not  miss  the 
opportunity  for  reconsideration,  with  a  view  to  denounce  and  can- 
demn  in  the  most  emphatic  manner  anything  that  tends  to  dis- 
credit it. 

Some  question  was  made  at  the  time  as  to  whether  this 
communication  was  a  valid  exercise  of  the  governor  to  neg- 
ative a  bill.  But  when  the  house  reached  the  consideration 
of  the  bill  and  of  the  message,  the  question  was  put  by  the 
speaker  :  "  Shall  the  bill  pass  notwithstanding  the  objections 
of  his  Excellency  the  governor  ?  "  and  1 13  members  voted 
in  the  affirmative  and  99  in  the  in  the  negative,  so  that,  un- 
der the  provisions  of  the  constitution  requiring  a  vote  of 
t  thirds  of  the  members  present  to  pass  the  bill  against 
objections  of  the  governor,  the  bill  failed  of  a  passage. 

In  October,  1887,  the  Legislature  of  New  Hampshire 
passed  an  act  entitled,  "An  act  of  in  amendment  of  chapter 
100  of  the  laws  of  1883,  entitled  '  An  act  providing  for  the 
establishment  of  railroad  corporations  by  general  law,'"  which 
iuly  presented  to  the  governor,  and  returned  by  him  on 
the  same  day  to  the  house,  with  the  following  communi- 
cation :  — 


STATE  OF  NEW  HAMPSHIRE, 

EXECUTIVE  DEPARTMENT, 

CONCORD,  October  18,  1887. 
To  the  House  of  Representatives : 

I  hereby  return  the  house  bill  entitled  "An  act  in  amendment 
of  chapter  100  of  the  laws  of  1883,  entitled  '  An  act  providing  for 
the  establishment  of  railroad  corporations  by  general  law,'  without 
my  signature. 

It  is  with  great  regret  that  I  feel  called  upon  to  exercise  the 
power  given  to  the  executive  by  the  constitution,  and  withhold  my 
approval  from  a  measure  which  has  passed  both  branches  of  the 
legislature  by  decided  majorities  after  a  thorough  and  able  discus- 
sion covering  a  period  of  nearly  four  months,  and  prolonging  the 
session  far  beyond  the  usual  limits,  at  great  expense  to  the  state. 

Without  entering  upon  the  intrinsic  merits  of  the  measure  to 
express  any  opinion  upon  a  question  of  such  vital  importance  to 
the  state,  and  upon  which  the  people  may  wish  to  be  heard,  I  am 
moved  to  object  to  the  bill  for  the  reason  that  corrupt  methods 
have  been  extensively  used  for  the  purpose  of  promoting  its  pas- 
sage. The  two  powerful  railroad  corporations  which  have  antag- 
onized each  other  in  the  contest  have  had  in  attendance  a  paid 
lobby  of  unprecedented  magnitude,  and,  as  a  consequence,  the 
representatives  have  been  persistently  followed  and  interfered  with 
in  the  free  performance  of  their  legislative  duties. 

The  widespread  rumors  and  scandalous  tales  of  bribery  and 
corruption  which  have  been  freely  current  during  the  progress  of 
the  contest,  finally  materialized  through  charges  preferred  in  the 
senate,  and  also  in  the  house,  after  the  passage  of  the  bill.  By 
the  courtes}T  of  the  chairman  of  the  judiciary  committee  of  the 
house,  upon  my  request,  I  have  received  the  official  records  of  the 
testimony  thus  far  taken  by  that  committee  in  their  investigation 
of  the  charges.  The  provision  of  the  constitution  limiting  the  time 
within  which  the  executive  veto  may  be  interposed,  together  viith 
the  probable  early  adjournment  of  the  legislature,  forces  me  to  fa.ke 
action  upon  the  measure  without  waiting  for  the  completion  of  the 
investigation  and  report  of  the  committee.  The  evidence  thus  far 
obtained  is,  in  my  opinion,  sufficient  to  justify  the  action  here  taken. 


5 

While  I  am  glad  to  be  able  to  say  that  no  evidence  has  yet  been 
produced  to  show  that  any  member  of  the  legislature  has  been  un- 
faithful to  his  trust  and  oath  of  office,  yet  to  my  mind  it  is  con- 
clusively shown  that  there  have  been  deliberate  and  systematic 
attempts  at  wholesale  bribery  of  the  servants  of  the  people  in  this 
legislature. 

It  matters  not  that  both  of  the  parties  are  probably  equally 
guilty.  The  fact  that  this  bill,  if  it  should  become  a  law,  would 
go  on  to  the  statute  book,  carrying  with  it  the  suspicion  that  it  had 
been  fraudulent!}7  enacted,  is  sufficient  reason  why  it,  and  all  legis- 
lation similarly  effected,  should  be  condemned. 

The  danger  of  permitting  the  use  of  such  methods  as  have  been 
here  employed  is  too  obvious  to  require  extended  comment,  and 
the  most  effectual  way  to  elude  such  practices  is  to  have  it  under- 
stood that  no  bill  attempted  to  be  passed  by  such  means  can  be- 
come a  law. 

When  the  promoters  of  a  measure  see  fit  to  offer  bribes  to  mem- 
bers, they  cannot  be  allowed  to  excuse  themselves  on  the  ground 
that  their  offers  were  not  accepted.  If  it  comes  to  be  understood 
that  unsuccessful  attempts  of  this  nature  will  not  imperil  the  pas- 
sage of  a  bill,  such  offers  will  become  much  more  frequent.  If  the 
offer  is  accepted,  neither  party  will  be  likely  to  disclose  the  fact. 
If  it  is  rejected,  it  is  in  this  view  to  be  considered  as  of  no  conse- 
quence, and  hence  no  harm  would  be  done  to  the  prospects  of  the 
bill. 

The  bare  statement  of  such  a  doctrine  is  its  best  answer.  In 
degrees  as  these  corrupt  practices  are  allowed  to  pass  unnoticed, 
the  moral  sense  of  not  only  legislators  but  also  of  the  people  will 
become  dulled  to  their  enormity,  and  in  the  end  make  government 
a  farce  and  an  object  of  contempt. 

As  the  honor  of  the  individual  should  be  above  price,  so  in  a 
larger  sense  should  the  honor  of  the  state  be  jealously  guarded. 
Being  strongly  impressed  that  the  honor  and  good  name  of  the 
state  and  its  legislature  are  involved  in  countenancing  the  methods 
that  have  been  practised  to  secure  the  passage  of  this  measure, 
and  that  all  other  considerations  should  be  set  aside,  and  feeling 
that  my  duty  is  plain,  I  veto  the  bill. 

CHARLES  H.  SAWYER, 

Governor. 


The  question  was  at  once  raised  whether  this  communica- 
tion, which  was  evidently  modelled  upon  that  of  the  gov- 
ernor of  Massachusetts,  was  a  valid  exercise  of  the  power  of 
the  executive  to  negative  the  bill,  and  on  the  4th  of  Novem- 
ber, when  the  house  reached  the  consideration  of  the  bill 
and  of  the  communication  from  the  governor,  it  passed  a 
preamble  and  resolution  as  follows  :  — 

Whereas  a  bill  entitled  "An  act  in  amendment  of  chapter  100 
of  the  laws  of  1883,  entitled  '  An  act  providing  for  the  establish- 
ment of  railroad  corporations  by  general  law,' "  which  originated 
in  the  house  of  representatives,  duly  passed  both  houses  of  the 
general  court,  and  was  presented  to  the  governor  on  the  eighteenth 
day  of  October,  1887,  according  to  the  requirement  of  the  consti- 
tution, and  the  governor  on  the  same  day  returned  said  bill  to  the 
house  in  which  it  originated,  without  his  signature,  and  therewith 
transmitted  a  communication  in  the  following  words :  — 

[Here  was  inserted  the  message  of  the  governor  to  the 
house.] 

And  whereas  it  appears  by  the  aforesaid  communication  of  the 
governor  that  his  excellency  did  not  examine  or  consider  the 
intrinsic  merits  of  said  bill,  and  did  not  form  or  express  any  opin- 
ion upon  a  question  of  such  vital  importance  to  the  state  as  that 
involved  in  the  merits  of  said  bill,  and  did  not  in  said  communi- 
cation state  any  objection  or  objections  to  said  bill ; 

And  whereas  the  constitution  of  this  state  provides  that  "  Every 
bill  which  shall  have  passed  both  houses  of  the  general  court  shall, 
before  it  becomes  a  law,  be  presented  to  the  governor.  If  he 
approve,  he  shall  sign  it ;  but  if  not,  he  shall  return  it  with  his  objec- 
tions to  that  house  in  which  it  shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  journal,  and  proceed  to  reconsider 
it."  And  further,  that  "  If  any  bill  shall  not  be  returned  by  the 
governor  within  five  days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  same  shall  be  a  law  in  like  manner  as 
if  he  had  signed  it,  unless  the  legislature  by  their  adjournment 
prevent  its  return,  in  which  case  it  shall  not  be  a  law ;  " 


And  whereas  it  is  the  sense  of  this  house  that  the  true  intent 
of  the  constitution  in  requiring  the  governor,  in  case  he  does  not 
approve  a  bill  which  shall  have  passed  both  houses,  to  return  his 
objections  to  it  with  the  bill  to  the  house  in  which  it  originated, 
is  to  give  the  two  houses  the  benefit  of  those  objections,  and  the 
reasons  and  arguments  adduced  by  him  in  their  support,  to  aid 
them  in  their  further  deliberations  upon  the  bill  when  they  come 
to  reconsider  it  in  compliance  with  the  requirement  of  the  consti- 
tution, and  it  is  the  constitutional  right  of  the  two  houses  to  have 
the  objections  of  the  governor  to  the  merits  of  a  bill  returned  with- 
out his  signature  to  aid  them  in  its  reconsideration,  therefore  no 
reconsideration  such  as  is  required  of  them  by  the  constitution  can 
be  had  by  the  two  houses  without  a  statement  of  those  objections  ; 

That  each  house  of  the  general  court  is  invested,  by  the  consti- 
tution, with  ample  power  for  the  protection  of  its  own  integrity, 
honor,  and  dignity,  and  the  safety  and  honor  of  its  members,  and 
no  other  department  of  the  government  is  charged  with  that  duty 
or  intrusted  with  that  power ; 

That  the  independence  as  well  as  integrity  of  the  two  house  of 
the  general  court  must  be  protected  in  order  that  the  integrity 
of  the  scheme  of  government  established  by  the  constitution  be 
preserved ;  and  therefore,  in  the  discharge  of  the  responsible 
duties  of  his  office,  each  member  is  answerable  to  the  house  to 
which  he  belongs  and  to  the  people  of  the  state,  and  not  other- 
wise ; 

That  inasmuch  as  the  only  reasons  which  appear  in  the  afore- 
said communication  of  his  excellency  the  governor,  why  he 
returned  the  said  bill  without  his  signature,  are  such  as  necessa- 
rily imply  that  the  governor  is  invested  with  power  to  inquire  into 
the  conduct  of  the  two  houses  of  the  general  court,  and  further 
imply  that  the  governor  is  charged  with  the  duty  of  protecting  the 
integrity,  honor,  and  dignity  of  the  two  houses  of  the  general 
court  and  their  members,  those  reasons  are  not  such  as  are  con- 
templated and  required  by  the  constitution,  and  are  therefore  of 
of  no  validity  or  legal  effect ; 

And  whereas  it  is  the  sense  of  the  two  houses  of  the  general 
court  that  the  true  intent  of  the  constitution  in  requiring  the 
governor,  when  he  returns  without  his  signature  a  bill  which  has 


8 


passed  both  houses,  to  return  therewith  his  objections,  is  to  ena- 
ble the  two  houses,  upon  reconsideration  of  the  bill,  to  remove 
and  obviate  those  objections  should  they  deem  it  wise  to  do  so ; 

That  the  assumption  by  the  governor  of  power  to  negative  a 
bill  by  returning  it  unsigned,  without  stating  any  objections  to  its 
provisions,  necessarily  implies  a  power  in  him  practically  equiva- 
lent to  an  absolute  and  arbitrary  veto,  inasmuch  as  the  two  houses, 
without  being  informed  what  his  objections  are,  could  not  intelli- 
gently reconsider  it,  and  so,  in  the  opinion  of  this  house,  works  a 
fundamental  and  dangerous  change  in  the  organization  of  the 
government  by  changing  the  constitutional  distribution  of  its 
powers  between  the  two  houses  and  the  governor ; 

That  the  veto  power  of  the  governor,  as  given  and  defined  by 
the  constitution,  is  strictly  limited  to  approving  or  disapproving 
bills  which  have  passed  both  houses  of  the  general  court,  upon 
reasons  appertaining  to  the  provisions  thereof;  and  in  case  of  dis- 
approval, the  statement  of  those  reasons  by  way  of  argument  to 
the  house  in  which  the  bill  originated,  in  order  that  such  reasons 
and  arguments  may  be  duly  considered  and  given  their  just  weight 
when  the  bill  comes  to  be  duly  reconsidered  by  the  two  houses  in 
the  performance  of  the  duty  enjoined  upon  them  by  the  constitution  ; 

That  in  the  exercise  of  the  veto  power  of  his  office  the  governor 
is  not  invested  with  authority  to  examine  into  or  pass  judgment 
upon  the  conduct  or  motives  of  either  house,  or  of  the  members  of 
either  house  ;  and  when  he  assumes  to  do  so  his  action  consti- 
tutes a  violation  of  that  article  in  the  bill  of  rights  which  declares 
that  "  In  the  government  of  this  state  the  three  essential  powers, 
to  wit,  the  legislative,  executive,  and  judicial,  ought  to  be  kept  as 
separate  from  and  independent  of  each  other  as  the  nature  of  a 
free  government  will  admit,  or  as  is  consistent  with  that  chain  of 
connection  that  binds  the  whole  fabric  of  the  constitution  in  one 
indissoluble  bond  of  union  and  amity,"  and  is  of  no  effect ; 

And  whereas  it  is  the  sense  of  this  house  that  the  omission  of 
the  governor  to  examine  and  consider  the  aforesaid  bill,  and  there- 
upon to  determine  whether  he  approved  or  disapproved  it,  and 
his  omission  to  return  with  said  bill  a  statement  of  his  objections 
thereto,  were  omissions  of  acts  made  indispensably  necessary  by 
the  constitution  to  the  withholding  of  his  signature  therefrom,  and 


9 


that  inasmuch  as  more  than  live  da}7s  (Sundays  excepted)  have 
elapsed  since  said  bill  was  presented  to  the  governor,  and  the 
same  has  not  been  returned  by  him  to  the  house  in  which  it 
originated,  with  his  objections,  according  to  the  true  meaning  and 
intent  of  the  constitution,  and  the  legislature  has  not  in  the  mean 
time  adjourned,  said  bill  has  become  and  is  a  law  without  the  sig- 
nature of  the  governor : 

Therefore,  be  it  Resolved  by  the  house  of  representatives,  that 
no  further  action  be  taken  by  this  house  upon  the  bill  entitled 
"An  act  in  amendment  of  chapter  100  of  the  laws  of  1883,  entitled 
'  An  act  providing  for  the  establishment  of  railroad  corporations 
by  general  law  ; '  "  but  that  said  act  and  this  resolution  be  trans- 
mitted to  the  secretary  of  state,  to  the  end  that  said  act  be  pub- 
lished with  the  other  laws  passed  at  this  session. 

Subsequently  it  was  claimed  in  legal  proceedings  in  the 
Supreme  Court  of  New  Hampshire  that  the  house  of  repre- 
sentatives were  right  in  treating  the  communication  from  the 

O  O 

governor  returning  this  bill  as  not  an  exercise  of  his  consti- 
tutional power  to  negative  the  bill,  and  that  the  bill  became 
a  law  notwithstanding  it.  The  case  in  which  that  question 
was  raised  is  still  pending,  and  it  is  claimed  by  one  party 
thereto  that  it  is  immaterial  to  the  issue  raised  in  it  whether 
the  bill  became  a  law  or  not.  If  the  Court  should  be  of 
this  opinion,  the  question  as  to  the  effect  of  the  governor's 
message  returning  the  bill  will  not  be  decided  in  that  suit. 
The  importance  of  the  question,  however,  is  obvious,  for  if 
under  the  United  States  Constitution  and  the  state  constitu- 
tions the  executive,  in  the  exercise  of  the  power  to  approve 
or  disapprove  a  bill  which  has  passed  both  branches  of  the 
legislature,  can  refuse  to  examine  into  the  merits  of  the  bill 
and  negative  it  without  entering  upon  its  merits  by  the  mere 
statement  of  objections  which  have  nothing  to  do  with  the 
provisions  of  the  bill  itself,  the  power  of  the  executive  with 


10 


reference  to  the  action  of  the  legislature  is  much  greater 
than  has  been  heretofore  understood. 

The  following  are  substantially  the  suggestions  made 
to  the  Supreme  Court  of  New  Hampshire  in  the  argu- 
ment of  the  question  raised  before  them  with  reference  to 
the  effect  of  the  communication  of  the  governor  of  that 
state  above  set  forth.  It  is  thought  that,  in  so  far  at  least 
as  they  embody  the  history  of  the  provision  giving  the  ex- 
ecutive the  power  to  revise  and  negative  legislative  acts  in 
the  United  States,  and  the  discussions  and  comments  of 
others  upon  that  subject,  they  may  be  of  general  interest. 

It  appears  that  this  bill  was  enacted  by  both  houses  of  the 
General  Court  of  New  Hampshire  and  duly  presented  to  the 
governor  for  his  approval,  and  that  the  legislature  did  not 
adjourn  within  five  days  (Sundays  excepted)  after  it  was 
thus  presented  to  the  governor.  The  bill  therefore  became 
a  law  unless  the  communication  which  the  governor  sent  to 
the  house  of  representatives  on  the  18th  of  October  was  an 
exercise  of  the  power  given  to  the  governor  by  article  44  of 
the  constitution  to  disapprove  a  bill  and  return  it  with  his 
objections  to  that  house  in  which  it  originated.  If  this  com- 
munication was  not  an  exercise  of  the  power  of  revision  and 
negative  given  by  this  article  of  the  constitution,  the  bill 
became  a  law  on  the  twenty-fifth  day  of  October,  as  alleged 
in  the  defendant's  answer. 

This  question  must  be  decided  by  the  judiciary,  for  it  is 
simply  a  question  of  whether  certain  acts  of  the  executive, 
which  are  of  record,  are  such  acts  as  the  constitution  pro- 
vides shall  prevent  a  bill  duly  enacted  by  both  houses  of 
the  general  court  from  becoming  a  law.  The  house  in 
which  the  bill  originated  declared  by  a  formal  resolution 
that  in  its  opinion  these  acts  did  not  prevent  the  bill  from 


11 


becoming  a  law.  The  question  is  whether  these  acts  thus 
shown  by  the  record  are  such  acts  as  the  constitution  pro- 
vides shall  have  that  effect,  and  that  is  a  pure  question  of 
law  which  the  judiciary  must  pass  upon  when  properly 
raised  in  a  cause  before  them,  precisely  as  they  must  pass 
upon  the  legal  effect  of  any  other  facts  in  the  case. 

"  As  the  judges  are  bound  to  take  notice  of  a  general  law,  so  it 
is  their  province  to  determine  whether  it  be  a  statute  or  not." 

Bolanderv.  Stevens,  23  Wend.  103. 
Gardner  v.  The  Collector,  6  Wall.  499. 
Harpending  v.,Haight,  39  Cal.  189. 
People  v.  Hatch,  19  111.  283. 
Ottawa  County  v.  Perkins,  94  U.S.  260. 
Tarlton  v.  Peggs,  18  Ind.  24. 

This  communication  was  a  statement  of  the  objections 
of  the  governor  to  signing  the  bill,  but  it  was  not  an  ob- 
jection to  the  provisions  of  the  bill.  The  communication 
itself  states  that  the  governor  expresses  no  opinion  upon  the 
merits  of  the  measure,  that  is,  of  the  bill,  but  that  he  is 
moved  to  object  to  the  bill  because  "  corrupt  methods  have 
been  extensively  used  for  the  purpose  of  promoting  its  pas- 
sage," and  because  "the  representatives  have  been  persist- 
ently followed  and  interfered  with  in  the  free  performance 
of  their  legislative  duties."  The  communication  is  not  even 
an  objection  to  the  conduct  of  the  legislature  or  of  any  mem- 
ber of  it,  for  it  carefully  states  "  that  no  evidence  has  yet 
been  produced  to  show  that  any  member  of  the  legislature 
has  been  unfaithful  to  his  trust  and  oath  of  office."  The 
communication  is  simply  a  statement  that  the  governor 
objects  to  signing  the  bill  because  to  do  so  would  counte- 
nance the  methods  that  have  been  practised  to  secure  its 


12 


passage.  And  in  a  subsequent  communication  to  the  senate 
on  the  first  of  November,  returning  without  his  signature  a 
bill  entitled  "An  act  to  authorize  the  lease  of  the  Northern 
Railroad,"  the  governor  said  that  the  substance  of  it  was  an 
important  part  of  the  bill  returned  to  the  house  on  October 
18  without  the  executive  signature,  "by  reason  of  corrupt 
methods  and  attempted  bribery  in  promoting  its  passage." 

N.H.  Senate  Journal,  1887,  p.  483. 

It  clearly  appears,  therefore,  by  the  communication  itself, 
that  the  governor  did  not  examine  the  bill,  and  he  does  not, 
in  the  communication,  express  any  opinion  upon  it;  i.e., 
his  communication  does  not  state  objections  to  the  bill 
itself,  but  only  objections  to  the  conduct  of  persons  not 
members  of  the  legislature,  and  whose  conduct  did  not  im- 
properly affect  any  member  of  the  legislature  with  reference 
to  the  passage  of  the  bill.  In  short,  the  communication  is 
only  a  statement,  — 

First.  That  the  governor  has  not  examined  the  merits  of 
the  bill. 

Second.  That  he  expresses  no  opinion  of  the  bill  itself. 

Third.  That  he  is  of  the  opinion  that  no  member  of  the 
legislature  has  been  improperly  influenced  with  reference  to 
the  passage  of  the  bill. 

Fourth.  That  he  is  of  the  opinion  that  "deliberate  and 
systematic  attempts"  have  been  made  to  improperly  influence 
the  members  of  the  legislature  with  reference  to  the  passage 
of  the  bill,  and  therefore,  for  the  purpose  of  condemning 
such  ineffectual  attempts  to  improperly  influence  the  legisla- 
ture, he  refuses  "to  enter  upon  the  intrinsic  merits  of  the 
measure  to  express  any  opinion  upon  them  ;  "  i.e.,  refuses  to 
examine  and  express  any  opinion  upon  the  bill  itself. 

The  whole  effect  of  the  communication  of  the  governor  with 


13 


reference  to  this  bill,  depends  upon  article  44  of  the  constitu- 
tion. If  it  was  not  such  action  as  that  article  requires,  it  was 
of  no  effect,  and  the  bill  became  a  law.  What  did  that  section 
require  the  governor  to  do  to  prevent  this  bill  from  becom- 
ing a  law  ? 

What  is  the  nature  of  the  power  given  to  the  governor  by 
this  provision  of  the  constitution  ?  Is  it  a  power  to  prevent 
a  bill  duly  enacted  by  both  branches  of  the  legislature  from 
becoming  a  law,  by  returning  it  without  examination  of  it, 
and  with  no  objection  to  its  provisions,  or  only  a  power  to 
revise  the  provisions  of  the  bill  and  prevent  it  from  becoming 
a  law,  by  a  statement  of  objections  to  its  provisions,  unless 
the  legislature,  upon  reconsideration  of  the  bill  in  the 
light  of  such  objections,  shall  again  pass  it  by  a  vote  of  two 
thirds  of  each  house  ?  Is  it  a  power  to  revise  and  negative 
bills  passed  by  the  legislature,  or  a  power  to  negative  them 
without  revision?  Does  it  require  an  expression  of  opinion 
as  to  the  merits  of  the  bill,  in  the  form  of  objections  returned 
with  the  bill  to  the  house  in  which  it  originated,  to  prevent 
its  passage,  or  is  the  duty  which  it  imposes  upon  the  gov- 
ernor fulfilled  by  returning  the  bill  without  examination, 
with  no  expression  of  opinion  as  to  its  merits  or  demerits, 
but  simply  with  objection  to  signing  it  without  reference  to 
its  provisions  ? 

The  defendant's  claim  is  that  an  examination  of  the  bill 
and  a  statement  of  objections  to  its  provisions  is  essential  to 
an  exercise  of  the  qualified  negative  of  the  governor  upon  the 
action  of  the  legislature,  and  that  as  this  communication  of  the 
governor  stated  that  he  had  not  examined  the  bill,  and  that  he 
expressed  no  opinion  upon  the  merits  of  it,  and  stated  no 
objections  to  its  provisions,  it  was  not  an  exercise  of  the  qual- 
ified negative  power  of  the  governor  under  the  constitution, 
and  therefore  the  bill  became  a  law. 


14 


It  is  true  that  the  governor  says,  "It  is  with  great  regret 
that  I  feel  called  upon  to  exercise  the  power  given  to  the  ex- 
ecutive by  the  constitution,  and  withhold  my  approval  from 
a  measure  which  has  passed  both  branches  of  the  legislature 
by  decided  majorities  after  a  thorough  and  able  discussion 
covering  a  period  of  nearly  four  months  and  prolonging  the 
session  far  beyond  the  usual  limits,  at  great  expense  to  the 
state."  And  if  he  said  nothing  more,  we  should  be  obliged  to 
assume  that  he  withheld  his  approval  from  the  measure  be- 
cause upon  examination  of  it  he  did  not  approve  it ;  but  he 
says  in  the  next  sentence,  "  Without  entering  upon  the  in- 
trinsic merits  of  the  measure  to  express  any  opinion  upon  a 
question  of  such  vital  importance  to  the  state,  upon  which 
the  people  may  wish  to  be  heard,  I  am  moved  to  object  to 
this  bill  for  the  reason  that  corrupt  methods  have  been  ex- 
tensively used  for  the  purpose  of  promoting  its  passage." 
Taken  as  a  whole,  this  is  a  declaration  that  he  will  not 
enter  upon  the  intrinsic  merits  of  the  measure,  that  is, 
will  not  examine  it,  and  that  he  will  not  express  any  opin- 
ion upon  it,  i.e.,  will  not  approve  or  disapprove  it,  but  that  he 
objects  to  it  for  reasons  wholly  outside  of  the  provisions 
of  the  bill  itself.  But  the  constitution  does  not  say  the 
governor  may  object  to  a  bill  simply.  A  person  may 
object  to  that  of  which  he  knows  nothing  and  of  which 
he  refuses  to  know  anything.  Objection  does  not  presup- 
pose examination  or  knowledge,  but  approval  or  disapproval 
does,  and  the  constitution  says  that  the  governor  must  approve 
or  disapprove.  The  vital,  operative  word  of  the  provision  is 
"  approve,"  which  necessarily  implies  examination,  considera- 
tion, revision.  There  can  be  no  constitutional  approval  or 
disapproval  without  examination  of  the  bill  approved  or  dis- 
approved. The  duty  and  power  of  the  executive  under  this 
provision  of  the  constitution  are  plain.  His  constitutional 


15 


action  under  it  is  limited  to  two  things  :  First,  to  the  ap- 
proval or  disapproval  of  the  bill  or  resolve  presented  to  him ; 
second,  to  the  expression  of  the  result  of  his  approval  or  dis- 
approval by  signing  the  bill  if  he  approves  it,  or  by  return- 
ing it  with  objections  if  he  disapproves  it.  He  has  no  con- 
stitutional right  to  sign  it  or  to  return  it  unless  he  approves 
it  or  disapproves  it,  and  for  him  to  refuse  to  approve  or  dis- 
approve is  to  refuse  to  perform  the  primary  duty  imposed 
upon  him  and  to  render  it  impossible  for  him  to  exercise  the 
qualified  negative  power  by  returning  the  bill.  The  power 
to  negative  the  bill  by  return  of  it  with  objections  depends 
absolutely  upon  the  disapproval  of  it,  which  in  the  nature  of 
things  requires  an  examination  and  consideration  of  it.  For 
the  governor  to  say  that  he  refuses  to  express  any  opinion  of 
the  bill  is  for  him  to  refuse  to  do  that  upon  which  alone  his 
power  to  return  it  with  objections  absloutely  depends. 

For  the  governor  to  say,  as  he  does  in  this  communication, 
that  he  does  not  express  any  opinion  upon  the  bill,  is  to  say 
that  he  does  not  approve  or  disapprove  it,  i.e.,  does  not  per- 
form his  constitutional  duty  with  reference  to  it. 

To  approve  is  "  To  be  pleased  with ;  to  think  well  of,  to 
admit  the  propriety  or  excellence  of"  (Webster)  ;  "To  think 
or  judge  favorably  of;  to  commend  ;  to  express  a  liking  to  " 
( Worcester).  How  can  this  be  predicated  of  that  which  is 
not  examined  or  considered  ?  To  disapprove  is  "  To  pass  un- 
favorable judgment  upon ;  t'o  condemn  by  an  act  of  the 
judgment ;  to  regard  as  wrong  or  inexpedient ;  to  censure  " 
(Webster)  ;  "To  censure,  to  dislike,  to  condemn  "  (Worces- 
ter). 

How  can  this  be  done  with  reference  to  that  which  is  not 
examined  or  considered  ? 

To  disapprove  is  an  act  of  the  judgment ;  to  object  to  is 
an  act  of  the  will.  The  constitution  subjects  the  acts  of  the 


16 


legislature  to  the  judgment  of  the  executive,  not  to  his  will. 
It  authorizes  him  to  examine  and  pass  judgment  upon  them, 
not  to  object  to  them  without  examination.  If  he  refuses  to 
examine  and  pass  judgment  upon  an  act  of  the  legislature, 
he  refuses  to  exercise  the  only  legislative  power  which  the 
constitution  has  conferred  upon  him.  If  he  refuses  to  ex- 
amine and  express  his  opinion  of  the  act  itself,  he  refuses  to 
do  that  which  the  constitution  makes  essential  to  the  exercise 
of  his  qualified  negative  upon  the  act.  The  constitution 
authorizes  the  executive  to  try  the  completed  acts  of  the 
legislature  and  condemn  them  by  a  negative,  not  to  condemn 
and  negative  them  without  a  trial. 

The  constitution  says,  if  the  governor  "approve,  he  shall 
sign  it ;  if  not  [that  is,  if  he  does  not  approve],  he  shall  re- 
turn it  with  his  objections,"  &c.  Here  the  governor  does 
not  say  that  he  does  not  approve  the  bill,  but  explicitly 
states  that  he  has  not  entered  upon  the  intrinsic  merits  of 
the  matter  [bill]  to  express  any  opinion  upon  the  subject, 
and  then  he  says  that  he  objects  to  its  passage  for  reasons 
which  have  nothing  to  do  with  the  merits  or  demerits  of  the 
bill,  or  even  with  the  conduct  of  the  legislature  with  refer- 
ence to  the  bill,  but  relate  wholly  to  the  conduct  of  persons 
outside  of  the  legislature,  and  which  conduct  has  not  had 
any  effect  upon  the  passage  of  the  bill.  But  the  power  of 
the  governor  under  the  constitution  to  return  a  bill  depends 
upon  whether  he  disapproves  of  it.  The  constitution  says, 
if  he  approves  he  shall  sign  it.  If  he  does  not  approve  he 
shall  return  it.  A  return  without  approval  or  disapproval 
of  the  bill  is  no  return,  and  there  can  be  no  approval  or  dis- 
approval without  examination.  For  a  governor  to  say  that 
he  has  not  examined  a  bill  is  for  him  to  say  that  he  has  not 
performed  the  only  legislative  function  which  the  constitu- 
tion authorizes  him  to  perform,  for  to  refuse  to  examine  is 


17 


to  refuse  to  approve  or  disapprove,  because  there  can  be 
neither  approval  nor  disapproval  of  a  thing  which  is  not  ex- 
amined. The  constitution  does  not  empower  the  governor 
to  simply  object  to  the  passage  of  a  bill.  It  makes  it  his 
duty  to  approve  or  disapprove,  and  thus  renders  it  impossible 
for  him  to  object  to  a  bill  without  examining  it.  It  does  not 
empower  him  to  return  a  bill  if  he  objects  to  signing  it,  but 
only  to  return  it  if  he  does  not  approve  of  it.  And  in  this 
case  he  states  that  he  has  not  examined  it  and  that  he  does  not 
express  any  opinion,  i.e.,  does  not  approve  or  disapprove, 
which  is  precisely  the  same  as  though  he  had  said,  "  As  to  this 
bill  I  refuse  to  exercise  my  revisory,  qualified  negative  power." 
The  true  construction  of  the  constitution  is  that  the  qualified 
negative  of  the  governor  can  be  exercised  only  upon  the  revision 
of  the  bill.  The  constitution  makes  it  the  duty  of  the  governor 
first  to  approve  or  disapprove  a  bill,  i.e.,  to  revise  and  ex- 
amine, and  his  whole  power  to  negative  the  bill  depends 
upon  his  having  examined  it.  If  he  does  not  examine  it  he 
cannot  return  it  with  objections.  It  is  the  plain  purpose 
of  the  constitution  to  cause  the  completed  acts  of  the  legis- 
lature to  pass  under  the  revision  of  the  executive,  and  to 
authorize  him  to  negative  them  only  upon  such  revision 
and  a  disapproval  of  their  provisions.  To  say  that  he  may 
return  a  bill  without  examination  and  with  objections  which 
do  not  relate  to  its  merits,  is  to  strike  out  of  the  constitu- 
tional provision  the  vital  word  "approve,"  and  make  it  read, 
not  "  Every  bill  which  shall  have  passed  both  houses  of  the 
general  court  shall,  before  it  becomes  a  law,  be  presented 
to  the  governor ;  if  he  approve  he  shall  sign  it,  but  if  not 
he  shall  return  it,"  &c.  ;  but  "Every  bill  which  shall  have 
passed  both  houses  of  the  general  court  shall,  before  it  be- 
comes a  law,  be  presented  to  the  governor;  if  he  signs  it  it- 
shall  become  a  law,  but  if  he  does  not  sign  it,  it  shall  not  be  a 


18 


law  unless  two  thirds  of  each  house  agree  to  pass  it  without 
his  signature." 

The  question  in  this  case  is  as  to  the  effect  of  a  refusal  by 
the  governor  to  examine  a  single  bill.  But  if  he  can  refuse 
to  examine  one  bill,  saying  that  he  will  not  enter  upon  its 
intrinsic  merits,  and  will  not  express  any  opinion  of  it,  and 
prevent  its  becoming  a  law  by  the  statement  to  the  legisla- 
ture of  objections  simply  to  signing  it  which  have  nothing 
to  do  with  the  bill  itself,  he  can  do  the  same  with  all  bills. 
Suppose  the  governor  should  say  at  a  session  of  the  legisla- 
ture, "I  will  not  examine  or  express  any  opinion  upon  the 
intrinsic  merits  of  any  bill  which  this  legislature  shall  pass, 
but  I  will  return  all  of  them  unsigned  with  the  objection  to 
signing  them  that  in  my  opinion  the  house  has  chosen  the 
wrong  man  for  speaker,  or  because  the  people  have  chosen  a 
legislature  which  disagrees  with  me  politically."  Can  it  be 
said  that  such  action  by  the  governor  would  be  an  exercise 
of  the  re  visionary,  qualified  negative  power  given  him  by 
the  constitution  ?  Can  it  be  that  the  governor  can  defeat  all 
action  by  the  legislature,  except  by  a  two-thirds  vote,  by  a 
simple  refusal  to  examine  its  completed  acts,  and  approve  or 
disapprove  them  upon  their  merits  or  demerits,  and  returning 
them  unsigned  with  mere  statements  of  his  objections  to  sign- 
ing them  ?  To  say  that  the  governor  who  did  this  ought  to 
be  impeached,  does  not  meet  the  difficulty.  Because,  if  his 
refusal  to  examine  the  acts  of  the  legislature  is  a  neglect  to 
perform  his  re  visionary  duty  under  the  constitution,  the 
constitution  itself  furnishes  the  remedy  by  the  provision  that 
the  bills  become  laws  notwithstanding  this  neglect.  And  if 
a  refusal  to  examine  the  acts  of  the  legislature  is  not  a 
neglect  to  perform  this  duty,  and  if  he  can  negative  the  acts 
by  returning  them  with  objections  simply  to  signing  them, 
the  character  of  those  objections  is  wholly  in  his  discretion. 


19 


The  objections  which  the  executive  is  required  to  send 
with  a  bill  when  he  disapproves  and  returns  it  to  the  house 
in  which  it  originated,  are  the  result  of  his  examination  of 
the  bill,  —  a  statement  of  the  reasons  why  he  disapproves  it, 
—  and  must,  not  only  by  the  plain  meaning  of  the  words  of 
the  constitution,  but  in  the  nature  of  things,  relate  to  the 
provisions  of  the  bill  disapproved.  It  was  not  sufficient 
for  the  governor  to  return  this  bill  saying  simply  that  he 
declined  to  sign  it.  The  constitutional  provision  is  not  that 
if  the  governor  approve  the  bill  he  shall  sign  it,  but  if  not, 
he  shall  return  it  with  a  refusal  to  sign  it.  It  is  that  if  he 
approve  the  bill  he  shall  sign  it,  but  if  not,  he  shall  return 
it  with  his  objections. 

If  the  Governor  had  returned  this  bill  with  a  communica- 

o 

tion  saying  that  he  had  examined  it  and  that  he  declined  to 
sign  it,  clearly  such  a  communication  would  have  had  no 
effect.  If  he  had  returned  it  with  a  communication  saying 
that  he  declined  to  enter  upon  the  intrinsic  merits  of  it,  that 
is,  declined  to  examine  it,  and  therefore  he  did  not  sign 
it,  the  communication  would  have  had  no  effect.  If  he  had 
returned  it  with  a  communication  stating  that  he  had  no  time 
to  examine  it  or  that  he  was  not  able  to  examine  it  and  express 
any  opinion  upon  it,  and  therefore  he  refused  to  sign  it,  the 
communication  would  have  had  no  effect.  The  language  of  the 

o       o 

constitution  is  explicit  that  if  the  governor  does  not  approve, 
he  shall  "  return  it  with  his  objections ;  "  and  unless  the  plain 
meaning  of  it  is  to  be  frittered  away,  the  objections  must  be 
the  result  of  an  examination  of  the  bill  and  to  the  bill  itself. 
The  language  is,  rf  Every  bill  that  shall  pass  both  houses  of 
the  general  court  shall,  before  it  becomes  a  law,  be  presented 
to  the  governor.  If  he  approve,  he  shall  sign  it;  but  if 
not,  he  shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  objec- 


20 


tions  at  large  on  their  journal,  and  proceed  to  reconsider  it." 
That  is,  stated  fully,  Every  bill  shall  be  presented  to  the 
governor.  If  he  approve  the  bill,  he  shall  sign  the  bill;  but 
if  not,  he  shall  return  the  bill,  with  his  objections  to  the  bill, 
to  that  house  in  which  the  bill  shall  have  originated,  who 
shall  enter  the  objections  at  large  on  their  journal,  and  pro- 
ceed to  reconsider  the  bill. 

It  is  suggested  that  this  language  only  requires  the  gov- 
ernor to  state  his  objections  to  signing  the  bill,  and  that  any 
objection  which  he  says  is  to  him  a  sufficient  reason  why  he 
should  not  sign  the  bill,  although  it  does  not  relate  at  all  to 
the  merits  or  to  the  provisions  of  the  bill,  is  a  statement  of 
objections  within  the  meaning  of  this  provision,  and  there- 
fore the  governor  can  negative  the  bill  without  any  examina- 
tion of  it. 

It  is  obvious  >  however,  that  this  concedes  to  the  governor 
the  power  under  this  provision  to  compel  the  general  court 
to  legislate,  by  a  two-thirds  vote  of  each  house,  without  any 
expression  of  opinion  on  his  part  as  to  the  merits  of  the 
legislation ;  that  is  to  say,  it  gives  him  power,  by  a  state- 
ment of  any  objection  to  signing  the  bill  which  he  chooses 
to  state,  to  compel  all  legislation  by  a  two-thirds  vote  of 
both  houses.  To  test  it,  suppose  the  governor  should  return 
a  bill  with  a  communication  saying  that  he  had  not  read  it, 
but  that  he  objected  to  signing  it  because  he  was  unable  to 
obtain  a  quill  pen  to  sign  it  with ;  or  because  he  received  it 
on  Friday,  which  he  considered  an  unlucky  day ;  or  because 
the  messenger  who  brought  it  to  him  was  a  colored  person ; 
or  suppose  he  should  return  the  bill  saying  that  he  had 
not  examined  it,  but  that  he  declined  to  sign  it  because  the 
legislature  had  continued  its  session  longer  than  he  thought 
was  proper,  or  because  he  was  satisfied  a  large  number  of 
members  of  the  legislature  were  of  the  Catholic  religion, 


21 


or  because  he  had  observed  that  many  of  the  members  of 
the  legislature  used  tobacco  or  intoxicating  liquors.  Can  it 
be  claimed  that,  by  returning  the  bill  with  objections  like 
these,  the  governor  could  prevent  its  becoming  a  law  unless 
two  thirds  of  both  houses  should  afterwards  vote  for  it? 
AVould  this  be  an  exercise  of  his  qualified  negative  power? 
And  yet  if  the  governor  can  prevent  a  bill  from  becoming  a 
law  by  returning  it  with  objections  simply  to  signing  it,  and 
not  to  the  bill  itself,  any  objection  which  he  sees  fit  to  state 
is  sufficient.  This  is  not  what  the  constitutional  provision 
giving  the  governor  a  qualified  negative  upon  the  acts  of 
the  general  court  means.  The  purpose  of  that  provision  is 
to  require  the  governor  to  examine  every  bill  which  has 
passed  both  houses  of  the  general  court  before  it  becomes  a 
law,  and  if  he  approves  the  bill,  to  require  him  to  sign  it,  but  if 
he  does  not  approve  the  bill,  to  require  him  to  return  it,  with 
his  objections  thereto,  to  the  house  in  which  it  originated, 
to  the  end  that  that  house  may  proceed  to  reconsider  the 
bill  in  the  light  of  the  governor's  objections  to  its  provisions. 
It  is  only  by  this  construction  of  the  provision,  which  is 
the  natural  construction  of  its  language,  that  full  effect  can 
be  given  to  all  its  provisions.  The  house  to  which  the  bill 
is  returned  is  required,  first,  to  enter  the  objections  of  the 
governor  at  large  on  their  journal,  and  then  to  proceed  to 
reconsider  the  bill,  and  if,  after  such  reconsideration,  two 
thirds  of  the  house  "agree  to  pass  the  bill,"  it  is  to  be  sent, 
together  with  such  objections,  to  the  other  house,  which  is 
required  likewise  to  reconsider  it.  For  what  purpose  are  the 
objections  to  be  entered  upon  the  journal  of  the  house  where 
the  bill  originated,  and  sent  with  the  bill,  if  it  be  passed  by 
two  thirds  of  that  house,  to  the  other  house,  except  that  both 
houses  may  have  the  benefit  of  such  objections  in  reconsider- 
ing the  bill  ?  To  say  that  objections  which  do  not  relate  to 


22 


the  bill  itself,  which  have  nothing  to  do  with  the  merits  of 
the  bill,  but  are  only  objections  which  the  governor  has  to 
signing  it,  without  reference  to  its  merits,  are  to  be  entered 
upon  the  journals  of  the  houses  before  the  house  proceed  to 
reconsider  the  bill,  is  to  say  that  something  shall  be  done  that 
is  purely  idle  and  unnecessary. 

It  is  said,  however,  that  as  the  governor,  in  his  revisionary 
and  qualified  negative  power  upon  the  action  of  the  legisla- 
ture, exercises  power  which  is  in  its  nature  legislative,  there- 
fore any  objection  which  a  legislator  could  make  to  proposed 
legislative  action  may  be  made  by  the  governor  against  the 
legislative  action  of  the  two  houses  of  the  legislature  ;  and  if 
this  be  so,  there  is  obviously  no  objection  of  any  possible 
description  which  the  governor  cannot  interpose  to  the  legis- 
lative action  of  the  two  houses,  and  he  may,  as  I  have  said, 
compel  them  to  legislate  by  a  two- thirds  vote,  by  the  arbi- 
trary statement  of  objections  which  have  nothing  whatever 
to  do  with  their  action,  and  cannot  in  the  nature  of  things 
affect  the  reconsideration  of  the  bill  in  the  slightest  degree. 
But  the  constitution  has  wisely  limited  the  right  of  the  ex- 
ecutive to  participate  in  legislation  to  the  doing  of  one  thing 
only,  and  that  is  to  revising  and  re-examining  the  acts  of  the 
legislature  and  approving  them  by  signing  them,  or  disap- 
proving them  by  a  statement  of  objections  to  them  to  be  re- 
turned to  the  legislature  to  aid  it  in  reconsideration. 

It  has  not  given  him  a  vote  upon  the  question  whether  a  bill 
shall  become  a  law  equal  to  that  of  two  thirds  of  the  members 
of  each  branch  of  the  legislature,  and  which  he  may  cast 
against  the  bill  in  the  form  of  an  objection  which  states  no 
reasons  for  it,  as  a  member  of  the  legislature  may  cast  his 
vote. 

It  has  only  made  it  his  duty  to  examine  the  completed  acts 
of  the  legislature,  and  approve  them  by  his  signature,  or  dis- 


approve  them  by  a  written  statement  of  his  objections  to 
them. 

It  has  given  him  five  days  within  which  to  perform  this 
duty,  and  has  wisely  provided  that  if  he  fails  to  perform  it 
within  that  time,  the  acts  of  the  legislature  shall  be  laws  with- 
out his  approval.  He  cannot  defeat  the  plain  requirement  of 
the  constitution  that  he  shall  examine  the  acts  of  the  legisla- 
ture, and  approve  or  disapprove  them  upon  their  intrinsic 
merits,  by  refusing  to  enter  upon  their  intrinsic  merits,  and 
returning  them  with  objections  which  have  nothing  to  do 
with  the  provisions  of  the  acts,  but  relate  to  the  conduct  of 
persons  outside  of  the  legislature,  and  which  he  says  have  not 
affected  its  action. 

If  a  bill  is  presented  to  the  governor  within  the  last  five 
days  of  the  session  (Sundays  excepted),  the  constitution 
does  not  require  him  to  sign  it,  or  to  return  it  with  objec- 
tions, but  permits  him  to  retain  it,  "in  which  case  it  shall 
not  be  a  law."  This  is  obviously  because  a  consideration  of 
the  provisions  of  the  bill  and  an  expression  of  his  opinion 
thereof  in  the  form  of  objections  to  the  bill,  if  he  does  not 
approve  it,  are  essential  to  the  discharge  of  his  constitutional 
duty  to  approve  the  bill  by  signing  it,  or  to  disapprove  it  by 
returning  it  with  objections  to  its  provisions  to  the  house  in 
which  it  originated.  In  his  message  to  the  senate  on  the 
Saint  Clair  flats  bill,  February  1,  1860,  President  Buchanan 
said  that  "  To  require  him  [the  president]  to  approve  a  bill 
when  it  is  impossible  he  could  examine  into  its  merits,  would 
be  to  deprive  him  of  the  exercise  of  his  constitutional  discre- 
tion, and  would  convert  him  into  a  mere  register  of  the  de- 
crees of  congress."  It  is  equally  true  that  to  allow  the  presi- 
dent or  the  governor  to  negative  the  action  of  congress  or 
the  legislature  without  examining  into  the  merits  of  that  action, 
would  be  to  give  him  an  arbitrary  check  upon  such  action 


24 


except  by  a  two-thirds  vote,  and  would  thus  change  the 
power  of  the  legislature  to  legislate  by  a  majority  vote 
(except  in  cases  where,  upon  examination  and  revision  of  its 
action,  the  executive  states  objections  thereto)  into  a  power 
to  legislate  only  by  a  two-thirds  vote  in  all  cases  where  the 
executive  may  so  direct. 

It  may  be  asked,  Do  you  claim  that  the  governor  must 
sign  a  bill  the  provisions  of  which  he  approves,  and  against 
the  intrinsic  merits  of  which  he  can  state  no  objections,  when 
he  knows  its  passage  to  have  been  procured  by  bribery,  or 
by  violence  or  fraud ?  To  this  I  reply,  in  the  first  place, 
that  that  question  is  not  raised  in  this  case.  The  governor 
says  that  no  member  of  the  legislature  has  been  untrue  to 
his  trust.'  His  communication  declares  that  the  "measure 
has  passed  both  branches  of  the  legislature  by  decided  ma- 
jorities, after  a  thorough  and  able  discussion  covering  a 
period  of  nearly  four  months,"  and  that  he  is  glad  "to  be 
able  to  say  that  no  evidence  has  yet  been  produced  to  show 
that  any  member  of  the  legislature  has  been  unfaithful  to  his 
trust  and  oath  of  office."  So  far  from  it  appearing  that  the 
passage  of  this  bill  was  procured  by  improper  means,  we 
have  the  official  certificate  of  the  governor  in  the  very  mes- 
sage by  which  he  objects  to  the  bill  that  all  attempts  to 
improperly  influence  the  action  of  the  legislature  in  relation 
to  it  failed,  and  that  it  was  the  result  of  the  deliberate  and 
honest  action  of  the  legislature. 

In  the  second  place,  I  answer  that  the  governor  cannot, 
for  the  purpose  of  exercising  his  qualified  negative  upon  the 
acts  of  the  legislature,  officially  know  that  their  action  has 
been  improper.  He  can  no  more  inquire  into  the  motives 
of  the  legislature  in  passing  a  bill  than  the  judiciary  can 
inquire  into  his  motives  in  approving  or  disapproving  it. 
Neither  branch  of  the  government  can  officially  know  that 


25 


the  action  of  another  branch  has  been  actuated  by  improper 
motives.  The  executive  cannot  try  the  honesty  of  the  legis- 
lature for  the  purpose  of  exercising  his  constitutional  func- 
tion of  revising  its  completed  action,  any  more  than  the 
judiciary  can  try  the  honesty  of  the  legislature  and  of  the 
executive  for  the  purpose  of  ascertaining  whether  its  com- 
pleted acts  are  laws.  Each  branch  of  the  government  must 
necessarily,  in  the  nature  of  things,  assume  the  honesty  and 
good  conduct  of  the  other.  When  a  bill  has  duly  passed 
both  houses  of  the  general  court,  and  is  presented  to  the 
governor  properly  authenticated  by  the  signatures  of  the 
speaker  of  the  house  and  of  the  president  of  the  senate, 
the  governor  can  no  more  go  behind  the  bill  itself  and 
inquire  into  the  motives  of  the  house  or  the  senate  in  passing 
it  than  the  judiciary,  when  the  bill  is  signed  by  the  governor, 
can  go  behind  his  signature  and  that  of  the  president  of  the 
senate  and  the  speaker  of  the  house,  and  try  the  question  of 
the  motives  of  the  governor  in  approving  it,  or  the  motives 
of  either  branch  of  the  general  court  in  passing  it. 

Counsel  for  the  plaintiffs  say,  "  Suppose  that  the  friends 
of  a  bill  forcibly  prevent  five  senators  from  entering  the 
state  house,  and  that  during  the  enforced  absence  of  these 
senators  the  bill  passes  the  upper  branch  by  a  majority  of 
one  ;  or  suppose  that  the  bill  passes  the  house  by  a  majority 
of  one  ;  that  on  the  very  next  day  fifty  members  are  indicted 
for  receiving  bribes  to  vote  in  favor  of  the  bill,  and  that 
they  all  plead  guilty,  and  are  sentenced  and  committed  to 
the  state  prison  before  the  bill  reaches  the  governor,  may 
not  the  governor,  on  account  ot  these  facts,  refuse  to  sign 
the  bill?"  The  illustration  is  more  striking  than  sound. 
It  might  as  well  be  put  with  reference  to  the  duty  of  the 
judiciary  to  enforce  a  law  which  has  been  duly  passed  by 
the  general  court  and  approved  by  the  executive,  or  become 


26 


a  law  by  the  failure  of  the  executive  to  approve  or  disap- 
prove it. 

Must  the  judiciary  enforce  a  law  the  passage  of  which  was 
procured  by  violence,  and  the  approval  of  which  was  ob- 
tained by  bribery  ?  It  may  seem  at  first  sight  that  it  ought 
not  to  do  so  ;  but  it  is  well  settled  that  the  judiciary  must 
enforce  the  law  without  reference  to  these  facts,  for,  unless 
the  completed  acts  of  each  branch  of  the  government  are  to 
be  taken  as  finalities  by  the  other  branches,  neither  is  inde- 
pendent of  the  other  and  there  is  no  real  constitutional  govern- 
ment. The  independence  of  the  three  branches  is  the  primary 
principle  of  our  constitutional  government,  and  it  necessarily 
requires  that  each  branch,  in  the  exercise  of  its  powers,  shall 
assume  the  good  conduct  of  the  other  branches.  The  only 
exception  to  this  is  the  constitutional  provision  for  impeach- 
ment trials,  in  which  the  official  impeached  can  be  condemned 
only  after  a  hearing  and  trial. 

Suppose  the  governor  seasonably  returns  a  bill  with  objec- 
tions to  its  provisions  to  the  house  in  which  it  originated, 
and  before  that  house  reach  a  reconsideration  of  the  bill  it  is 
known  beyond  question  that  the  governor  was  bribed  to 
return  the  bill ;  is  it  any  less  the  duty  of  that  house  to  recon- 
sider the  bill,  and  does  it  thereby  become  a  law  without  a 
two-thirds  vote  of  each  house  notwithstanding  the  objec- 
tions? Or  even  suppose  before  the  house  reaches  the  re- 
consideration of  the  bill  the  governor  has  been  impeached 
and  removed  from  office  for  accepting  a  bribe  to  return  the 
bill  with  objections,  does  the  bill  thereby  become  a  law, 
notwithstanding  its  return,  without  further  action  by  either 
house?  If  so,  then,  as  in  this  state  the  house  can  impeach, 
and  the  senate  can  condemn  and  remove  the  governor  by  a 
majority  vote,  the  constitutional  provision  for  revision  of  the 


27 


acts  of  the  general  court  by  the  executive  can  be  thereby 
wholly  nullified. 

It  is  not,  as  the  learned  counsel  for  the  plaintiff  seem  to 
apprehend, "a  question  of  the  separation  of  the  powers  of 
government  between  the  three  branches,  but  of  the  inde- 
pendence of  each  branch  in  the  exercise  of  its  powers.  This 
independence  of  the  three  branches  is  at  the  foundation 
of  the  scheme  of  government  established  by  the  constitution, 
and  necessarily  requires  each  branch  to  accept  the  acts  of  the 
others  as  finalities  without  any  inquiry  into  their  conduct  or 
motives  in  relation  to  them. 

The  fact  that  in  the  revision  of  the  acts  of  the  general 
court  the  executive  exercises  legislative  power,  does  not 
change  the  case,  for  it  is  not  a  question  of  what  kind  of 
power  either  branch  exercises,  but  of  whether,  in  the  exer- 
cise of  that  power,  it  must  treat  the  acts  of  the  other  branches 
as  final,  or  can  go  behind  them  and  pass  judgment  upon  the 
conduct  and  motives  of  the  other  branches  in  relation  to 
them. 

While  the  governor  exercises  legislative  power  in  the 
approval  or  disapproval  of  the  acts  of  the  legislature,  he  ex- 
ercises it  only  in  the  manner  and  to  the  extent  specifically 
pointed  out  by  the  constitution,  and  as  an  independent 
branch  of  the  government  with  reference  to  the  completed  acts 
of  another  independent  branch.  Legislative  power  may  be 
said  to  be  inherent  in  the  legislature^,  so  that  the  mere  estab- 
lishment of  a  legislative  branch  of  the  government  clothes  it 
with  power  to  legislate,  but  such  power  is  not  inherent  in 
the  executive  branch  of  the  government,  and  the  establish- 
ment of  an  executive  branch,  so  far  from  clothing  it  with 
legislative  power,  necessarily  excludes  such  power.  What- 
ever legislative  power  the  governor  has,  therefore,  must  be 
found  within  the  fair  meaning  of  the  words  of  the  constitu- 


28 


tion  authorizing  him  to  approve  or  disapprove  the  acts  of 
the  legislature ;  and  to  administer  that  provision  with  any 
regard  to  the  independence  of  the  legislature,  the  governor 
must  deal  with  the  acts  which  come  to  him  from  the  two 
branches  of  the  legislature,  without  reference  to  the  motives 
of  the  legislature  in  passing  them.  An  ample  answer  to  all 
suggestions  such  as  are  made  by  the  counsel  for  the  plaintiffs 
with  reference  to  the  power  of  the  governor  to  refuse  to  ap- 
prove acts  of  the  legislature  without  reference  to  their  merits 
because  the  legislature  were  actuated  by  improper  motives 
in  passing  them,  is  that  it  is  not  so  written.  The  constitu- 
tion has  not  clothed  the  governor  with  power  to  try  the  con- 
duct of  the  legislature  or  of  either  branch  of  it.  It  has 
simply  given  him  power  to  try  the  completed  acts  of  the 
legislature  when  they  reach  him  in  the  form  of  bills  which 
have  duly  passed  both  branches  and  are  properly  authen- 
ticated to  him  as  such.  It  has  directed  to  him  to  examine 
and  approve  or  disapprove  the  bills,  not  to  go  behind  the 
bills  and  approve  or  disapprove  the  conduct  or  motive  of  the 
legislature  in  passing  them. 

Once  concede  the  power  of  the  governor  in  the  exercise  of 
his  function  of  approving  or  disapproving  bills  which  have 
passed  both  branches  of  the  legislature  to  refuse  to  examine 
the  bills  upon  their  merits  and  to  go  behind  the  bills  them- 
selves and  examine  into  and  try  the  conduct  of  either  branch 
of  the  legislature  with  reference  to  their  passage,  and  there 
is  no  limit  to  such  inquiry.  He  may  try  not  only  the  hon- 
esty of  the  conduct  of  the  members  of  the  legislature,  but  the 
propriety  of  their  conduct.  He  may  say,  I  will  not  sign  this 
bill  because  the  debate  in  the  legislature  has  not  been  decor- 
ous, or  because  the  legislature  have  held  night  sessions,  or 
because  debate  was  unduly  restricted  upon  the  bill  in  one 
branch  or  the  other,  or  because  the  speaker  of  the  house  or 


the  president  of  the  senate  ruled  improperly  with  reference 
to  some  question  raised  upon  the  consideration  of  the  bill, 
or  because  the  house  or  the  senate  suspended  its  rules  and 
passed  the  bill  without  proper  consideration. 

If  the  constitution  gives  the  governor  the  power  to  do 
this,  it  is  his  duty  to  exercise  that  power  and  examine  into  the 
propriety  or  honesty  of  the  conduct  of  the  legislature  or  of  any 
of  its  members  whenever  any  question  is  raised  with  regard  to 
it.  And  he  is  thus  made  not  a  revisor  of  the  bills  enacted  by 
the  legislature,  but  a  supervisor  of  its  conduct  and  its  morals  ; 
and  the  power  of  the  legislature  to  legislate  by  a  majority 
vote  of  each  house  is  made  to  depend  not  upon  the  character 
of  the  bills  it  passes  or  upon  the  governor's  opinion  of  the 
merits  of  those  bills,  but  upon  his  opinion  of  the  propriety 
of  its  conduct  and  the  rectitude  of  its  motives. 

The  framers  of  the  constitution  wisely  refrained  from  giv- 
ing to  the  governor  any  such  power,  and  thereby  imposing 
upon  him  any  such  duty.  They  authorized  him  to  deal  only 
with  the  completed  acts  of  the  legislature  in  a  particular 
manner,  and  gave  to  each  house  ample  power  to  deal  with  the 
misconduct  of  its  members  or  of  other  persons  affecting  its 
deliberations  and  conduct.  The  learned  counsel  for  the 
plaintiff  say,  "  Suppose  the  members  of  the  legislature  ex- 
ceeding in  number  the  majority  who  voted  for  a  bill  have  all 
been  indicted  for  taking  bribes  for  voting  for  the  bill,  have 
pleaded  guilty  and  have  been  sentenced  and  committed  to 
state  prison  before  the  bill  reaches  the  governor  ?  "  Do  they 
know  of  any  statute  under  which  a  member  of  the  legislature 
can  be  indicted,  convicted,  and  sent  to  prison  by  the  court 
for  misconduct  in  his  office  as  a  member  of  the  legislature  ? 
Suppose  such  an  indictment  to  be  found  and  the  question  of 
the  conduct  of  the  legislator  submitted  to  the  decision  of  a 
jury.  Obviously  that  question  can  be  and  ought  to  be  tried 


30 


by  the  house  of  which  he  is  a  member.  Suppose  the  jury 
and  that  house  come  to  different  conclusions.  Can  the  mem- 
ber be  imprisoned  and  prevented  from  representing  his  con- 
stituency because  the  jury  have  found  him  to  be  guilty  of 
misconduct  as  such  member,  while  the  house  of  which  he  is 
a  member  have  found  that  he  has  not  been  guilty  of  such 
misconduct  ? 

Or  if  the  jury  find  him  not  guilty,  is  the  house  of  which 
he  is  a  member  thereby  prevented  from  trying  and  expelling 
him  if  it  finds  he  is  guilty  ? 

The  governor  seems  to  have  feared  that  his  approval  of 
this  bill  would  be  an  approval  of  what  he  believed  to  be  the 
improper  conduct  of  those  who  promoted  its  passage  ;  and 
therefore,  obviously  because  he  believed  that  the  character 
of  a  bill  which,  as  he  said,  had  "passed  both  branches  of  the 
legislature  by  decided  majorities,  after  a  thorough  and  able 
discussion  covering  a  period  of  nearly  four  months,"  would, 
without  doubt,  prove  upon  examination  to  be  such  that  he 
could  not  disapprove  it  upon  its  merits,  in  order  to  show  his 
disapproval  of  the  conduct  of  those  who  had  promoted  its 
passage,  he  refused  to  perform  his  constitutional  duty  of  ex 
amining  the  bill. 

Having  the  bill  duly  authenticated  and  presented  to 
him  as  a  completed  act  of  the  legislature  as  an  inde- 
pendent branch  of  the  government,  he  deliberately  dis- 
regarded the  plain  mandate  of  the  constitution  to  him  to 
examine  and  approve  or  disapprove  the  bill,  and  entered 
upon  an  ex  parle  trial  of  the  conduct  and  motives  of  the 
legislature  and  of  those  who  had  appeared  before  it  in  rela- 
tion to  the  passage  of  the  bill.  Fortunately  for  the  legisla- 
ture, it  was  acquitted  by  his  excellency ;  but  he  convicted 
those  who  had  appeared  before  it,  and,  to  punish  them  for 
the  misconduct  of  which  he  thus  found  them  guilty  without 


31 


notice  and  without  hearing,  he  refused  to  express  an  opinion 
upon  the  merits  of  the  bill,  and  attempted  to  prevent  its 
becoming  a  law  by  wholly  refusing  to  perform  his  constitu- 
tional duty  of  examining  and  approving  or  disapproving  it. 
It  must,  of  course,  be  assumed  that  the  motives  of  the 
governor  were  pure  and  good ;  but  if  he  believed  that  an 
approval  of  the  bill  Avould  be  an  approval  of  the  conduct  of 
the  legislature  or  of  those  who  promoted  the  passage  of  the 
bill  by  it,  he  was  clearly  wrong.  It  was  the  completed  act 
of  the  legislature  9  as  shown  by  the  bill  duly  authenticated 
and  presented  to  him,  which  he  was  authorized  and  required 
to  approve  or  disapprove,  not  the  methods  by  which  it 
became  a  completed  act.  The  governor's  approval  of  a  bill 
is  no  more  an  expression  of  his  opinion  of  the  conduct  of 
the  legislature  with  reference  to  its  passage,  no  more  an 
approval  or  disapproval  of  the  conduct  of  those  who  promote 
its  passage,  than  the  administration  of  a  law  by  the  judiciary 
is  an  expression  of  their  opinion  of  the  conduct  of  the  legis- 
lature in  passing  it,  or  of  the  governor  in  approving  it. 

The  governor's  communication  states  that  he  deems  it  his 
plain  duty  to  rebuke  the  misconduct  of  which  he  has  found 
the  promoters  of  the  bill  to  have  been  guilty,  and  therefore 
he  says,  "  Without  entering  upon  its  merits,  I  VETO  THE 

BILL." 

The  motive  of  his  excellency  must  be  assumed  to  have 
been  good,  his  purpose  high  and  moral ;  but  where  in  the 
constitution  is  he  authorized  to  rebuke  the  conduct  of  suitors 
before  the  general  court?  Where  in  the  constitution  or  the 
law  of  New  Hampshire  is  the  good  name  of  those  who 
appear  before  the  general  court  committed  to  the  arbitrary 
decision  of  the  executive  to  be  tried  and  condemned  un- 
heard? What  right  under  the  constitution  has  the  governor 
to  perform  his  high  constitutional  duty  of  revising  the  acts 


32 


of  the  legislature  without  reference  to  the  merits  of  those 
acts,  and  for  the  purpose,  not  of  assisting  the  legislature  to 
make  good  laws,  but  of  rebuking  the  conduct  of  those  who 
have  appeared  before  it? 

Does  the  constitution  authorize  the  governor  to  deprive 
the  people  of  the  benefit  of  a  good  law  the  provisions  of 
which  he  does  not  disapprove,  unless  two  thirds  of  each 
house  vote  for  it,  merely  to  enable  him  to  rebuke  the  conduct 
of  those  who  promoted  its  passage,  because  such  conduct 
does  not  conform  to  his  moral  standard? 

The  constitution  authorizes  and  requires  the  governor  to 
examine  the  acts  of  the  legislature  and  advise  it  of  any 
objections  to  them  which,  upon  such  examination,  he  finds 
to  exist ;  but  it  nowhere  empowers  him  to  veto  or  forbid 
such  acts  even  for  the  purpose  of  rebuking  conduct  which 
does  not  meet  his  approval.  His  duty  is  to  assist  the  legis- 
lature by  an  examination  of  its  acts  and  pointing  out  any 
objections  to  them,  not  to  forbid  its  acts  without  reference 
to  their  merits.* 

It  is  true  the  power  given  to  the  executive  by  this  provision 
is  purely  legislative,  and  if  he  exercises  it  only  in  the  manner 
and  to  the  extent  to  which  he  is  authorized  to  exercise  it,  the 
independence  of  the  legislative  and  executive  powers,  as  de- 
fined by  the  constitution,  is  not  thereby  interfered  with,  for 
the  fundamental  rule  stated  by  article  37,  part  1,  of  the  con- 
stitution, that  "the  legislative,  executive,  and  judicial  powers 
of  the  government  ought  to  be  kept  as  separate  and  inde- 
pendent of  each  other  as  the  nature  of  a  free  government  will 
admit,"  is  to  be  construed  in  subordination  to  the  express 

*  "  It  is  really  an  abuse  of  language  to  term  the  refusal  of  the  President  to  approve 
a  bill « a  veto.'  The  word  is  not  in  the  constitution.  It  is  borrowed  from  a  state  ot 
affairs  essentially  different,  and  does  not  harmonize  with  the  constitutional  notion  of 
the  president's  co-operation  in  legislation.  The  president  has  no  right  to  forbid  con- 
gress to  do  anything.  He  can  only  say  that  he  does  not  agree,  and  declare  his  reasons 
therefor."  (Von  Hoist's  Const.  Law,  sec.  33.) 


33 


provisions  of  the  constitution  itself.  To  the  extent  that  the 
constitution  confers  legislative  power  upon  the  executive,  it 
is  as  much  his  duty  to  exercise  it  as  it  is  the  duty  of  the  leg- 
islature to  exercise  the  legislative  power  confided  to  it  by 
the  constitution,  and  the  exercise  of  the  legislative  power 
conferred  upon  the  governor  by  the  constitution  to  that  extent 
does  not  in  the  slightest  degree  interfere  with  the  fundamen- 
tal rule  of  the  constitution  that  the  legislative,  executive,  and 
judicial  powers  of  the  government  ought  to  be  separate  and 
independent.  But  when  we  come  to  consider  to  what  extent 
the  constitution  has  conferred  legislative  power  upon  the  ex- 
ecutive, we  are  bound  to  construe  the  language  giving  that 
power  in  such  a  way  as  not  to  interfere  with  the  operation  of 
this  fundamental  rule,  that  the  legislative  and  executive  pow- 
ers are  to  be  kept  separate  and  independent.  And  if  we  find 
two  constructions  of  the  language  giving  that  power  to  the 
executive  possible,  one  a  construction  which  subjects  the 
completed  acts  of  the  legislature  to  an  arbitrary  negative 
without  examination  and  without  reasons  based  upon  the 
merits  or  demerits  of  such  acts,  and  which  practically  em- 
powers the  executive  branch  of  the  government  to  arbitra- 
rily compel  the  legislative  branch  to  act  in  all  cases  by  a 
two-thirds  vote  ;  and  another  construction  which  subjects  the 
completed  acts  of  the  legislative  branch  only  to  the  revision 
and  re-examination  of  the  executive,  and  empowers  him  to 
compel  the  legislature  to  pass  such  acts  as  he  may  negative 
upon  examination,  only  with  the  aid  of  objections  by  him  to 
the  provisions  thereof,  so  that  the  executive  acts  as  the  ad- 
viser of  the  legislature  and  not  as  its  dictator,  —  it  is  our 
duty  to  adopt  the  construction  which  least  interferes  with  the 
independence  of  the  legislative  branch,  and  hold  that  the 
provision  conferring  legislative  power  upon  the  executive 
only  authorizes  him  to  state  objections  to  the  provisions  of 


34 


legislative  acts  which  he  revises,  and  not  that  which  author- 
izes him  to  negative  them  without  revision  by  objections 
which  have  nothing  to  do  with  their  merits. 

Even  if  it  were  doubtful  whether  the  language  of  the  con- 
stitution authorizes  the  executive  to  negative  a  bill  by  return- 
ing it  without  an  examination  of  it,  the  contemporaneous  and 
subsequent  practical  construction  of  this  provision,  from  its 
adoption  down  to  the  present  time,  shows  conclusively  that 
an  examination  of  the  bill  and  a  statement  of  objections  to  it, 
which  are  the  result  of  such  examination,  is  essential  to  the 
exercise  of  the  qualified  negative  power. 

"Great  weight  has  always  been  attached,  and  very  rightly 
attached,  to  contemporaneous  exposition." 

MARSHALL,  C.J.,  in   Cohens  v.   Virginia,  6  Wheat. 
418. 

"The  contemporaries  of  the  constitution  have  claims  to  our 
deference  upon  the  question,  because  they  had  the  best  opportuni- 
ties of  informing  themselves  of  the  understanding  of  the  framers 
of  the  constitution  and  of  the  sense  put  upon  it  by  the  people 
when  it  was  adopted  by  them." 

Ogden  v.  Saunders,  12  Wheat.  290. 

Upon  this  ground  alone  the  Supreme  Court  of  the  United 
States  sustained  the  right  of  its  members  to  sit  as  circuit 

judges. 

Stuart  v.  Laird,  I  Cranch,  299. 

So  also  the  same  Court,  in  holding  that  the  appellate  power 
of  the  United  States  extends  to  cases  pending  in  the  state 
courts,  said,  — 

"  Strong  as  this  conclusion  stands  upon  the  general  language 
of  the  constitution,  it  may  still  derive  support  from  other  sources. 
It  is  an  historical  fact  that  this  exposition  of  the  constitution, 


35 


extending  its  appellate  power  to  state  courts,  was,  previous  to  its 
adoption,  uniformly  and  publicly  avowed  by  its  friends,  and  ad- 
mitted by  its  enemies,  as  the  basis  of  their  respective  reasonings 
both  in  and  out  of  the  state  conventions.  It  is  an  historical  fact 
that,  at  the  time  when  the  judiciary  act  was  submitted  to  the 
deliberations  of  the  first  congress,  composed  as  it  was  not  only 
of  men  of  great  learning  and  ability,  but  of  men  who  had  acted  a 
principal  part  in  framing,  supporting,  or  opposing  that  constitu- 
tion, the  same  exposition  was  explicitly  declared  and  admitted  by 
the  friends  and  by  the  opponents  of  that  system." 

Martin  v.  Hunter's  Lessee,  I  Wheat.  351. 

It  is  therefore  proper  to  show  that  it  is  an  historical  fact 
that  the  constitutional  provision  giving  a  qualified  negative 
upon  the  acts  of  the  legislature  was,  before  its  adoption, 
held  to  give  simply  a  power  of  revision  and  not  of  objection, 
and  that  in  its  exercise  by  those  who  were  contemporary 
with  its  adoption  and  knew  the  views  of  those  who  framed 
it,  and  by  all  who  have  exercised  it  since,  it  has  uniformly 
been  treated  as  requiring  an  examination  of  the  legislative 
acts  and  an  expression  of  the  opinion  of  the  executive  as  to 
their  provisions. 

The  history  of  this  constitutional  provision  and  of  the 
views  of  those  who  framed  and  adopted  it,  shows  conclu- 
sively that  it  was  intended  to  give  the  executive  power  to 
revise  the  acts  of  the  legislature  and  negative  them  only  by 
the  statement  of  objections  to  their  provisions,  and  that  a 
consideration  of  the  provisions  of  the  bill  is  essential  to  its 
exercise. 

The  qualified  negative  of  the  executive  upon  acts  of  the 
legislature,  commonly  called  the  "veto  power, "  as  it  exists  in 
the  Constitution  of  New  Hampshire  and  in  most  of  the  other 
states  of  the  Union  and  in  the  Constitution  of  the  United 


36 


States,  is  peculiar  to  those  constitutions,  and  exists  no- 
where else.  It  is  not  an  arbitrary  power  to  negative  the 
action  of  the  legislative  branch  of  the  government  without 
giving  reasons,  — like  the  power  of  the  English  sovereign  to 
negative  acts  of  parliament,* — but  only  a  power  to  negative 
the  action  of  the  legislature  upon  reasons  stated  to  it  in  a 
particular  manner  ;  that  is  to  say,  by  objections  to  its  action, 
rendered  to  that  branch  of  the  legislature  in  which  such 
action  originated,  to  be  entered  upon  the  records  of  that 
branch  to  aid  it  in  the  reconsideration  of  its  action,  which, 
upon  receiving  such  objections,  it  is  its  duty  to  reconsider. 

It  first  appears  as  the  third  article  of  the  original  Constitu- 
tion of  the  State  of  New  York,  known  as  the  constitution 
of  1777,  which  was  framed  and  adopted  April  20,  1777, 
by"  The  Provincial  Congress"  which  assembled  July  10,  1776. 
It  was  introduced  into  the  congress  by  Robert  B.  Living- 
ston, and  the  original  draft  in  his  handwriting  is  still  in  ex- 
istence among  the  miscellaneous  papers  in  the  secretary  of 
state's  office.  It  was  not  amended,  but,  after  some  debate, 
the  nature  of  which  is  not  shown  by  the  journal  of  the  con- 
gress, was  adopted  as  presented  by  a  vote  of  thirty-one  to 
four. 

Journal  of  Provincial  Congress,  N.Y. ,  vol.  I.  pp.  860- 
862. 


*"  When  a  bill  has  passed  through  both  houses  the  royal  assent  is  given  either  by 
her  majesty  in  person  or  by  commission.  When  her  majesty  gives  her  consent  in  per- 
son, her  concurrence  is  previously  communicated  to  the  clerk-assistant,  who  reads  the 
titles  of  the  bills,  on  which  the  royal  assent  is  signified  by  a  gentle  inclination.  If  it  be 
a  bill  of  supply,  the  clerk  pronounces  loudly,  '  La  reign e  remercre  ses  bons  sujets, 
accepte  leur  benevolence,  et  ainsi  le  veult,'  — 'The  Queen  thanks  her  good  subjects, 
accepts  their  benevolence,  and  answers,  Be  it  so.'  To  other  public  bills  the  form  of 
assent  is  'La  reigne  le  veult,'  — 'The  Queen  wills  it  so.'  To  private  bills,  '  Soi  fait 
comme  il  est  desire,'  — 'Be  it  as  it  is  prayed.'  When  the  royal  assent  is  refused,  the 
clerk  says,  'La  reigne  s'avisera,'  — 'The  Queen  will  consider  of  it; '  but  these  words 
are  never  now  pronounced,  and  have  not  been  heard  since  Queen  Anne  refused  to  sanc- 
tion the  Scotch  Militia  bill  in  the  year  1707."  (The  Crown,  the  Senate,  and  the  Bench,  p. 
54.) 


37 


It  was  as  follows  :  — 


"  III.  And  whereas  laws  inconsistent  with  the  spirit  of  this  con- 
stitution or  with  the  public  good  may  be  hastily  or  unadvisedly 
passed :  Be  it  ordained  that  the  governor,  for  the  time  being  the 
chancellor,  and  the  judges  of  the  Supreme  Court,  or  any  two  of 
them,  together  with  the  governor,  shall  be  and  hereby  are  consti- 
tuted a  council  to  revise  all  bills  about  to  be  passed  into  laws  by 
the  legislature,  and  for  that  purpose  shall  assemble  themselves  from 
time  to  time  when  the  legislature  shall  be  convened,  for  which,  nev- 
ertheless, they  shall  not  receive  any  salary  or  consideration  under 
any  pretence  whatever.  And  that  all  bills  which  have  passed  the 
senate  or  assembly  shall  before  they  become  laws  be  presented  to 
the  said  council  for  their  revisal  and  consideration;*  and  if  upon 
such  revision  and  consideration  it  should  appear  improper  to  the 
said  council,  or  a  majority  of  them,  that  the  said  bill  should  become 
a  law  of  this  state,  that  they  return  the  same,  together  with  their 
objections  thereto,  in  writing,  to  the  senate  or  house  of  assembly 
(in  whichsoever  the  same  shall  have  originated),  who  shall  enter 
the  objections  sent  down  by  the  council  at  large  in  their  minutes, 
and  proceed  to  reconsider  the  said  bill.  But  if  after  such  consid- 
eration two  thirds  of  the  said  senate  or  house  of  assembly  shall, 
notwithstanding  the  said  objections,  agree  to  pass  the  same,  it 
shall,  together  with  the  objections,  be  sent  to  the  other  branch  of 
the  legislature,  where  it  shall  also  be  reconsidered,  and  if  approved 
by  two  thirds  of  the  members  present,  shall  be  law. 

"  And  in  order  to  prevent  any  unnecessary  delays,  be  it  further 
ordained  that  if  any  bill  shall  not  be  returned  by  the  council 
within  ten  days  after  it  shall  have  been  presented,  the  same  shall 
be  a  law,  unless  the  legislature  shall  by  their  adjournment  render 
a  return  of  the  said  bill  within  ten  days  impracticable,  in  which 
case  the  bill  shall  be  returned  on  the  first  day  of  the  meeting  of 
the  legislature  after  the  expiration  of  the  ten  days." 

New  York  Constitution,  1777,  Article  3. 

It  next  appears  in  the  constitution  adopted  by  a  conven- 
tion of  the  people  of  Vermont,  July  8,  1777,  which  vested 

*  The  italics  are  mine. 


38 


the  legislative  power  in  a  house  of  representatives,  and  the 
executive  power  in  a  governor  and  council,  and  provided  for 
the  revision  of  acts  of  the  legislature  as  follows  :  — 

"To  the  end  that  laws  before  they  are  enacted  may  be  more 
maturely  considered,  and  the  iuconveniency  of  hasty  determination 
as  much  as  possible  prevented,  all  bills  of  public  nature  shall  be 
first  laid  before  the  governor  and  council  for  their  perusal  and 
proposals  of  amendment,*  and  shall  be  printed  for  the  consideration 
of  the  people  before  they  are  read  in  general  assembly  for  the 
last  time  of  debate  and  amendment ;  except  temporary  acts  which 
after  being  laid  before  the  governor  and  council,  may  (in  case 
of  sudden  necessity)  be  passed  into  laws  ;  and  no  other  shall  be 
passed  into  laws  until  the  next  session  of  assembly.  And  for  the 
more  perfect  satisfaction  of  the  public,  the  reasons  and  motives 
for  making  such  laws  shall  be  fully  and  clearly  expressed  and  set 
forth  in  their  preambles." 

Section  14,  Vermont  Const.  1777. 

In  the  Pennsylvania  Constitution  adopted  September  28, 
1776,  the  following  provision  was  inserted  to  guard  against 
hasty  legislation :  — 

"To  the  end  that  laws  before  they  are  enacted  may  be  more 
maturely  considered,  and  the  inconvenience  of  hasty  determina- 
tions as  much  as  possible  prevented,  all  bills  of  public  nature  shall 
be  printed  for  the  consideration  of  the  people  before  they  are  read 
in  general  assembly  the  last  time  for  debate  and  amendment ;  and, 
except  on  occasions  of  sudden  necessity,  shall  not  be  passed  into 
laws  until  the  next  session  of  assembly  ;  and  for  the  more  perfect 
satisfaction  of  the  public,  the  reasons  and  motives  for  making 
such  laws  shall  be  fully  and  clearly  expressed  in  the  preambles." 

Section  15,  Penn.  Const.  1776. 

It  next  appears  as  article  two,  chapter  one,  of  the  original 
Constitution  of  Massachusetts,  adopted  March  2,  1780.  By 

^The  italics  are  mine. 


39 


this  article  the  power  of  revision  was  given  to  the  governor, 
but  in  other  respects  the  provision  is  plainly  copied,  not  only 
in  its  idea  but  largely  in  its  language,  from  the  provision  of 
the  New  York  Constitution.  This  article  was  as  follows  :  — 

u  No  bill  or  resolve  of  the  senate  or  house  of  representatives  shall 
become  a  law,  and  have  force  as  such,  until  it  shall  have  been  laid 
before  the  governor  for  his  revisal;  and  if  he,  upon  such  revision,* 
approve  thereof,  he  shall  signify  his  approbation  by  signing  the 
same.  But  if  he  have  any  objection  to  the  passing  of  such  bill 
or  resolve,  he  shall  return  the  same,  together  with  his  objections 
thereto,  in  writing,  to  the  senate  or  house  of  representatives,  in 
whichsoever  the  same  shall  have  originated ;  who  shall  enter  the 
objections  sent  down  by  the  governor,  at  large,  on  their  records,  and 
proceed  to  reconsider  the  said  bill  or  resolve  ;  but  if,  after  such 
reconsideration,  two  thirds  of  the  said  senate  or  house  of  represen- 
tatives shall,  notwithstanding  the  said  objections,  agree  to  pass  the 
same,  it  shall,  together  with  the  objections,  be  sent  to  the  other 
branch  of  the  legislature,  where  it  shall  also  be  reconsidered,  and 
if  approved  by  two  thirds  of  the  members  present,  shall  have  the 
force  of  a  law  :  but  in  alt  such  cases,  the  votes  of  both  houses  shall 
be  determined  by  yeas  and  nays ;  and  the  names  of  the  persons 
voting  for,  or  against,  the  said  bill  or  resolve  shall  be  entered  upon 
the  public  records  of  the  commonwealth. 

"And  in  order  to  prevent  unnecessary  delays,  if  any  bill  or 
resolve  shall  not  be  returned  by  the  governor  within  five  days 
after  it  shall  have  been  presented,  the  same  shall  have  the  force  of 

a  law."} 

Mass.  Constitution  1780,  ch.  1,  art.  2. 

The  constitution  adopted  by  the  Massachusetts  General 
Court  in  1778,  and  which  was  rejected  by  the  people,  con- 
tained no  provision  for  any  revision  of  the  acts  of  the  legis- 
lature before  they  became  laws,  and  the  provision  for  such 
revision  in  the  constitution  of  1780  was  evidently  suggested 

*The  italics  are  mine. 

t  Amended  in  1820  by  a  provision  that,  if  the  legislature  prevent  the  return  by 
adjournment  within  the  live  days,  the  bill  or  resolve  shall  not  have  the  force  of  law. 


40 


by  the  provision  for  a  council  of  revision  in  the  New  York 
Constitution. 

When  the  Massachusetts  Constitution  of  1780  was  adopted, 
the  New  York  council  of  revision  had  existed  for  nearly 
three  years,  and  had  returned  ten  bills  to  the  legislature 
with  carefully  prepared  objections  and  arguments  against 
their  provisions. 

Street's  New  York  Council  of  Revision,  pp.  201-229. 

Mr.  Hamilton,  speaking  of  the  council  of  revision  about 
this  time,  said,  "Its  utility  has  become  so  apparent  that  per- 
sons who  in  compiling  the  constitution  were  violent  opposers 
of  it,  have  from  experience  become  its  declared  admirers." 

The  usefulness  of  the  revisionary  power  had  been  shown 
by  experience  in  New  York,  and  the  constitutional  conven- 
tion of  the  adjacent  State  of  Massachusetts  naturally  adopted 
it  without  much  debate  as  to  the  propriety  of  it.  But  the 
proceedings  of  the  convention,  and  its  address  submitting  the 
constitution  framed  by  it,  to  the  people,  show  clearly  that 
the  members  of  the  convention  did  not  understand  that  the 
negative  power  given  to  the  governor  by  the  constitution 
was  one  to  be  exercised  without  reference  to  the  merits  of 
the  bills  negatived.  It  was  first  proposed  that  "the  gov- 
ernor of  this  commonwealth  have  a  negative  upon  all  laws 
except  those  which  shall  be  passed  and  made  for  the  military 
defence  of  the  state,  and  that  he  have  a  revision  upon 
those,"  &c. 

Journal  of  Mass.  Const.  Convention,  1780,  p.  132. 

This  provision  for  an  absolute  negative,  except  as  to  la\vs 
for  military  defence,  was  rejected,  and  power  of  revision 
was  granted  in  the  following  language  ;  viz.,  — 

kt  No  bill  or  resolve  of  the  senate  or  house  of  representatives  shall 


41 


become  a  law  and  have  force  until  it  shall  have  been  laid  before  the 
governor  for  his  revisal ;  and  if  he,  upon  such  revision,  .  .  .  shall 
have  any  objection  to  the  passing  of  such  bill  or  resolve,  he  shall 
return  the  same,  together  with  his  objections  thereto,  in  writing," 

and  as  given  on  page  91. 

Ibid.  p.  133. 

The  purpose  of  vesting  this  power  in  the  governor  was 
stated  in  the  address  of  the  convention  submitting  the  con- 
stitution to  the  people,  as  follows  :  — 

"  The  power  of  revising  and  stating  objections  to  any  bill  or  resolve 
that  shall  be  passed  by  the  two  houses,  we  are  of  opinion  ought  to 
be  lodged  in  the  hands  of  some  one  person,  not  only  to  preserve 
the  laws  from  being  unsystematical  and  inaccurate,  but  that  a  due 
balance  may  be  preserved  in  the  three  capital  powers  of  govern- 
ment. .  .  .  We  have  therefore  thought  the  governor  the  only 
proper  person  that  could  be  trusted  with  the  power  of  revising  the 
bills  and  resolves  of  the  general  assembly."  * 

Ibid.  pp.  218,  219. 

May  25,  1787,  the  Convention  met  to  frame  a  United  States 
Constitution. 

At  that  time  eleven  of  the  states  had  adopted  constitutions 
in  the  following  order  of  time  ;  viz.,  — 

New  Hampshire,  January  5,  1776. 

South  Carolina,  March  26,  1776. 

Virginia,  June  29,  1776. 

New*  Jersey,  July  2,  1776. 

Delaware,  September  21,  1776. 

Pennsylvania,  September  28,  1776. 

Maryland,  November  11,  1776. 

North  Carolina,  December  18,  1776. 

Georgia,  February  5,  1777. 

*The  italics  are  miue. 


42 


New  York,  April  20,  1777. 

Vermont,  July  8,  1777. 

Massachusetts,  March  2,  1780. 

The  Constitution  of  South  Carolina  vested  the  legislative 
authority  in  the  "president  and  commander-in-chief "  (chosen 
by  joint  ballot  of  the  general  assembly  and  the  legislative 
council),  the  general  assembly,  and  the  legislative  council, 
with  a  provision  that  bills  which  had  passed  the  assembly 
and  the  council  might  be  assented  to  or  rejected  by  the 
president  and  commander-in-chief. 

Of  the  other  ten  states  which  had  adopted  constitutions  at 
that  time,  only  Massachusetts  and  New  York  had  provided 
thereby  for  any  revision  of  legislative  acts  before  they  should 
become  laws,  or  any  qualified  negative  by  the  executive  upon 
the  legislative  branch  of  the  government. 

The  New  York  council  of  revision  had  then  returned  fifty- 
eight  bills  and  resolves  with  full  and  particular  objections 
and  arguments  against  their  provisions. 

The  governor  of  Massachusetts  returned  two  resolves  and 
one  bill  with  careful  objections  to  their  provisions.* 

*The  first  objection  by  the  Governor  of  Massaohu setts  to  an  act  of  the  Legislature  is 
found  in  the  following  message  of  General  Hancock,  which  I  think  has  never  been 
printed,  but  exists  in  the  original  manuscript  in  the  office  of  the  Secretary  of  State :  — 

"  Gentlemen  of  the  Senate  and  Gentlemen  of  the  House  of  Representatives : 

"  Embarrass'd  as  I  find  myself  to  be  for  want  of  Time  to  Consider  the  important 
Bills  that  were  laid  before  me  yesterday  afternoon,  I  however  feel  a  Disposition  to  sub- 
mit to  take  upon  myself  a  Burden  plac'd  upon  me  by  one  of  them  which  I  had  the  great- 
est Claim  to  be  excus'd  from  rather  than  the  two  Houses  should  be  subjected  to  the  in- 
convenience of  remaining  Sitting,  when  their  wishes  are  so  urgent  to  return  home — I 
therefore  will  not  make  any  Objections  to  the  Bill  intitled  "  An  Act  for  repealing  two 
Laws  of  this  State,  and  for  Asserting  the  rights  of  this  free,  Sovereign  Commonwealth 
to  expell  such  Aliens  as  may  be  dangerous  to  the  Peace  and  good  order  of  Govern- 
ment "  And  as  the  Import  and  Excise  Act  which  was  yesterday  laid  before  me,  to 
which  I  have  objections  in  its  present  mode,  does  not  take  place  'till  the  15th  of  June 
next,  and  consequently  no  Prejudice  can  arise  by  the  delay  of  its  passing  'till  next 
Session;  I  am  under  that  Circumstance  now  ready  to  Comply  with  the  request  of  the 
Two  Branches  of  the  General  Court  for  a  recess  and  will  direct  the  Secretary  to  proceed 
accordingly  if  the  two  Houses  Consent  to  the  Suspension  of  that  Bill. 

"JOHN  HANCOCK. 
"  Boston,  March  25th,  1784." 

July  1775,  Governor  Bowdoin  returned  to  the  house  a  resolve  appointing  "acorn- 


43 


This  Convention  adopted  the  provision  for  revision  of  the 
acts  of  the  legislature  in  the  Constitution  of  Massachusetts , 
and  confided  the  power  of  revision  to  the  executive  alone, 
instead  of  to  the  executive  and  the  judiciary.  But  their 
debates  and  action  and  the  discussion  of  this  provision  by 
Mr.  Hamilton  and  others  before  the  federal  constitution 
was  adopted,  show  that  everybody  regarded  the  re  visionary 
power  given  by  the  New  York  Constitution  to  the  council  of 
revision,  and  the  power  of  revisal  given  to  the  governor  by 
the  Constitution  of  Massachusetts,  and  the  power  of  stating 
objections  to  acts  of  congress  given  to  the  president  by  the 
Federal  Constitution,  as  identical,  and  as  only  a  power  to 
examine  and  revise  the  action  of  the  legislative  branch  of  the 
government  by  the  statement  of  objections  to  its  provisions. 
The  provision  for  granting  that  power  first  appears  in  the 
resolutions  proposed  by  Mr.  Randolph  at  the  opening  of  the 
convention,  the  eighth  of  which  was,  — 

"  Resolved,  That  the  executive  and  a  convenient  number  of  the 
national  judiciary  ought  to  compose  a  council  of  revision,*  with 
authority  to  examine  every  act  of  the  national  legislature  before  it 


mittee  to  receive,  examine,  and  pass  on  all  accounts  that  now  or  may  be  hereafter  ex- 
hibited against  the  commonwealth,"  with  the  objection  that  he  deemed  it  unconstitu- 
tional. (Mass.  Res.  vol.  6,  p.  392.) 

May,  1787,  Governor  Bowdoin  returned  "  a  bill  reducing  the  salary  of  the  governor 
of  the  commonwealth,"  with  the  objection  that  he  apprehended  the  bill  to  be  contrary 
to  the  constitution,  and  was  therefore  compelled  to  return  it  for  reconsideration. 
(Mass.  Res.  vol.  7,  p.  291.) 

March,  1788,  Gov.  Hancock  returned  a  resolve  for  payment  of  a  sum  of  money  to 
Captain  Benjamin  Heywood,  with  the  objection  that  Capt.  Heywood  had  been  paid  for 
the  same  services  in  pursuance  of  a  previous  resolve.  (Mass.  Res.  vol.  7,  p.  465.') 

The  qualified  negative  has  since  been  exercised  by  the  governors  of  Massachusetts 
as  follows :  Twice  in  1827,  once  in  1830,  once  in  1831,  twice  in  1833,  once  in  1837,  once  in 
1840,  twice  in  1*51,  three  times  in  1852,  three  times  in  1855,  once  in  1856,  five  times  in 
1857,  once  in  1859,  four  times  in  1860,  four  times  in  1861,  twice  in  1862,  three  times  in 
1864,  three  times  in  1865,  twice  in  1867,  five  times  in  1868,  twice  in  1870,  twice  in  1871, 
once  in  1873,  three  times  in  1874,  twice  in  1876,  three  times  in  1877,  once  in  1879,  once 
in  1881,  once  in  1882,  eleven  times  in  1883,  three  times  in  1884,  twice  in  1886,  twice  in  1887, 
once  in  1888. 

*  The  italics  are  mine. 


44 


shall  operate,  and  every  act  of  a  particular  legislature  *  before  a 
negative  thereon  shall  be  final ;  and  that  a  dissent  of  the  said 
council  shall  amount  to  a  rejection,  unless  the  act  of  the  national 
legislature  be  again  passed,  or  that  of  a  particular  legislature  be 
again  negatived  by  of  the  members  of  each  branch." 

Madison's  Debates,  vol.  5  (Eliot's)  p.  126. 

Chief  Justice  Yates,  who  had  been  a  member  of  the  council 
of  revision  of  the  State  of  New  York  from  its  creation,  was 
a  delegate  to  the  convention,  and  his  colleagues  were  John 
Lansing,  Jr.  (afterwards  chief  justice  and  chancellor,  and,  as 
such,  a  member  of  the  council  of  revision)  and  Alexander 
Hamilton. 

The  report  by  Chief  Justice  Yates  of  the  discussion  and 
action  upon  this  resolution  is  quite  interesting  as  bearing 
upon  the  views  of  the  convention  with  reference  to  the  char- 
acter of  the  power  proposed  to  be  given  to  the  executive. 
It  is  as  follows  :  — 

"  On  the  4th  of  June,  in  committee  of  the  whole,  — 

"  Mr.  Gerry,  of  Massachusetts,  objects  to  the  clause,  moves 
its  postponement  in  order  to  let  in  a  motion  '  that  the  right 
of  revision  should  be  in  the  executive  only.1 

"Mr. Wilson,  of  Pennsylvania,  'contends  that  the  executive 
and  judicial  ought  to  have  a  joint  and  full  negative ;  they 
cannot  otherwise  preserve  their  importance  against  the  legis- 
lature.' 

"Mr.  King,  of  Massachusetts,  was  against  the  interference 
of  the  judicial.  They  may  be  biased  in  the  interpretation. 
He  is  therefore  to  give  the  executive  a  complete  negative. 

"  Carried,  to  be  postponed,  six  states  against  four.  New 
York  for  it. 

*  The  mention  of  "every  act  of  a  particular  legislature"  in  this  resolution  referred 
to  the  provision  of  Mr.  Randolph's  sixth  resolution,  which  was  that  congress  should 
have  power  to  negative  laws  passed  by  the  several  states  which  in  its  opinion  were 
contrary  to  the  national  constitution,  or  any  treaty  under  the  authority  thereof. 


45 


"The  next  question  [was]  that  the  executive  have  a  com- 
plete negative,  and  it  was  therefore  voted  to  expunge  the 
remaining  part  of  the  clause.  Dr.  Franklin  against  the 
motion.  The  power  dangerous,  and  would  be  abused  so  as 
to  get  money  for  passing  bills. 

"Mr.  Madison  against  it,  because  of  the  difficulty  of  an 
executive  venturing  on  the  exercise  of  this  negative,  and  is 
therefore  of  the  opinion  that  the  revisional  authority  is  better. 

"Mr.  Bedford,  of  Delaware,  is  against  the  whole,  either 
negative  or  revisional.  The  two  branches  are  sufficient 
checks  on  each  other.  No  danger  of  subverting  the  ex- 
ecutive, because  his  powers  may  by  the  convention  be  so 
well  defined  that  the  legislature  cannot  overleap  the  bounds. 

"  Mr.  Mason,  of  Virginia,  against  the  negative  power  in  the 
executive,  because  it  will  not  agree  with  the  genius  of  the 
people. 

"On  this  the  question  was  put  and  decided  nem.  con.  against 
expunging  part  of  the  clause  so  as  to  establish  a  complete 
negative. 

"  Mr.  Butler,  of  South  Carolina,  that  all  acts  passed  by  the 
legislature  be  suspended  for  the  space  of  days  by 

the  executive. 

"Unanimously  in  the  negative. 

"  It  was  resolved  and  agreed  that  the  blank  [in  Mr.  Ean- 
dolph's  resolution]  be  filled  up  with  the  words  '  two  thirds  of 
the  legislature.'  Agreed  to. 

"  The  question  was  then  put  upon  the  clause  as  amended 
and  filled  up.  Carried.  Eight  states  for,  two  against.  New 
York  for  it. 

"  Mr.  Wilson  then  moved  for  the  addition  of  a  convenient 
number  of  the  national  judicial  to  the  executive  as  a  council 
of  revision.  Ordered  to  be  taken  into  consideration  to- 
morrow." 


46 


On  the  6th  of  June,  "  Mr.  Wilson,  of  Pennsylvania,  moved 
[in  consequence  of  a  vote  to  reconsider  the  question  of  the 
revisional  powers  vested  in  the  executive^  that  there  be  added 
these  words  :  '  with  a  convenient  number  of  the  national  judi- 
cial.' 

"Upon  debate,  carried  in  the  negative.  Three  states  for 
and  three  against.  New  York  for  the  addition." 

Secret  Proceedings  and  Debates  of  the  Convention  of 
1787,  by  Robert  Yates. 

Mr.  Pinckney  submitted  a  plan  of  a  federal  constitution  at 
the  same  time  in  which  the  provision  with  reference  to  the 
revisionary  power  was,  that  — 

"  Every  bill  which  shall  have  passed  the  legislature  shall  be  pre- 
sented to  the  President  of  the  United  States  for  his  revision;  *  if  he 
approves  it  he  shall  sign  it,  but  if  he  does  not  approve  it  he  shall 
return  it  with  his  objections  to  the  house  it  originated  in,  which 
house,  if  two  thirds  of  the  members  present,  notwithstanding  the 
president's  objections,  agree  to  pass  it,  shall  send  it  to  the  other 
house,  with  the  president's  objections,  where,  if  two  thirds  of  the 
members  present  also  agree  to  pass  it,  the  same  shall  become  a 
law ;  and  all  bills  sent  to  the  president,  and  not  returned  by  him 
within  days  shall  be  laws,  unless  the  legislature  by  their 
adjournment  prevent  their  return,  in  which  case  they  shall  not  be 
laws." 

Ibid,  p.  130. 

In  the  debate  upon  the  resolution  presented  by  Mr.  Ran- 
dolph with  reference  to  revising  the  acts  of  the  national 
legislature,  the  discussion  was  between  those  who  advocated 
an  absolute  negative  power  in  the  executive  and  those  who 
favored  a  revisionary  power  only. 

Ibid,  pp.  155,  164. 

*  The  italics  are  mine. 


47 


Mr.  Madison,  in  supporting  the  motion  to  join  a  conve- 
nient number  of  the  national  judiciary  with  the  executive  in 
the  exercise  of  this  power,  speaks  of  it  constantly  as  a  "  re- 
visionary  function,"  a  "revisionary  power."  Mr.  Pinckney, 
Mr.  Wilson,  and  all  the  others  who  discussed  the  question, 
spoke  of  it  uniformly  as  a  revisionary  power,  a  power  to 
revise,  and  never  as  a  power  to  negative  simply. 

Ibid.  pp.  155,  164,  165. 

Subsequently  the  committee  of  the  whole  reported  to  the 
convention  a  plan  for  the  constitution,  the  tenth  resolution 
of  which  was,  — 

"  That  the  national  executive  shall  have  the  right  to  negative 
any  legislative  act  which  shall  not  afterwards  be  passed  by  two 
thirds  of  each  branch  of  the  national  legislature." 

Ibid.  p.  190. 

Five  days  after  this  Mr.  Hamilton,  who  had  taken  no  part 
in  the  debates,  presented  a  sketch  of  the  essential  features 
of  such  a  constitution  as  he  thought  should  be  adopted.  The 
provision  with  reference  to  the  veto  power  was,  — 

"  The  functions  of  the  executive  to  be  as  follows  :  To  have  a  neg- 
ative on  all  laws  about  to  be  passed,  and  the  execution,"  &c. 

Ibid.  p.  205. 

The  tenth  resolution  of  the  plan  reported  from  the  com- 
mittee of  the  whole,  to  wit,  that  the  national  executive  shall 
have  the  right  to  negative  any  legislative  act  which  shall  not 
be  afterwards  passed  by  two  thirds  of  each  branch  of  the 
national  legislature,  was  adopted  by  the  convention  on  the 
18th  of  July  without  debate. 

Ibid.  p.  328. 


48 


On  the  21st  of  July  an  amendment  was  moved  by  Mr. 
Wilson  to  the  resolution  "  that  the  supreme  national  judiciary 
should  be  associated  with  the  executive  in  the  revisionary 
power."  In  support  of  this  Mr.  Wilson  said,  "Let  the 
judges  have  a  share  in  the  revisionary  power,  and  they  will 
have  an  opportunity  of  taking  notice  of  the  characteristics 
of  a  law,  and  of  counteracting  by  the  weight  of  their  opinions 
the  improper  views  of  the  legislature." 

Mr.  Madison  argued  that  "to  join  the  judiciary  would  be 
useful  to  the  executive  by  inspiring  additional  confidence 
and  firmness  in  exerting  the  revisionary  power."  It  would 
be  useful  to  the  legislature  by  the  valuable  assistance  it 
would  give  in  preserving  consistency,  conciseness,  and  per- 
spicuity and  technical  propriety  in  the  laws. 

Mr.  Mason,  Mr.  Gerry,  Mr.  Gouveneur  Morris,  and  Mr. 
Luther  Martin,  all  spoke  of  the  power  proposed  to  be  given 
by  this  provision  of  the  constitution  as  a  "  revisionary 
power,"  a  "revisionary  check,"  "the  action  of  the  judiciary 
and  executive  branches  in  the  revision  of  the  laws."  It  was 
objected  to  the  plan  of  joining  the  judges  with  the  executive 
that  it  was  contrary  to  the  fundamental  principle  which  had 
been  approved  by  the  convention  that  the  three  departments 
of  the  government  should  be  kept  distinct ;  to  which  it  was 
replied  that,  if  such  a  judiciary  check  on  the  laws  was  incon- 
sistent with  this  theory,  "it  was  equally  so  to  admit  the 
executive  to  any  participation  in  the  making  of  laws,  and 
the  revisionary  plan  ought  to  be  discarded  altogether." 

After  this  discussion,  the  whole  tenor  of  which  shows  that 
the  power  contemplated  to  be  given  to  the  executive  or  to 
the  executive  and  the  judiciary,  was  a  power  to  revise  and 
not  a  power  to  negative  without  examination,  the  tenth  reso- 
lution was  adopted  in  the  form  proposed;  that  is,  that  the 
executive  should  have  the  right  to  negative  any  legislative 


49 


act  not  afterwards  passed  by  two  thirds  of  each  branch  of  the 
legislature. 

July  26  the  convention  referred  its  proceedings  to  a  com- 
mittee of  detail,  and  adjourned  till  August  6,  that  the 
committee  might  have  time  to  prepare  and  report  the  con- 
stitution. 

The  thirteenth  resolution  of  the  draft,  as  referred,  was  in 
these  words  : 

"Kesolved,  That  the  national  executive  shall  have  a  right  to 
negative  any  legislative  act ;  which  shall  not  be  afterwards  passed, 
unless  by  two  third  parts  of  each  branch  of  the  national  legisla- 
ture." 

Ibid.  p.  376. 

In  the  draft  of  the  report  of  the  committee  on  the  6th  of 
August,  the  provision  as  to  the  re  visionary  power  of  the  ex- 
ecutive was  contained  in  section  13  of  article  6  of  the  draft 
in  these  words : 

"  Every  bill  which  shall  have  passed  the  house  of  representatives 
and  the  senate  shall,  before  it  becomes  a  law,  be  presented  to  the 
President  of  the  United  States  for  his  revision.  If,  upon  such 
revision,  he  approve  of  it,  he  shall  signify  his  approbation  by 
signing  it.  But  if,  upon  such  revision,  it  shall  appear  to  him 
improper  for  being  passed  into  a  law,  he  shall  return  it,  together 
with  his  objections  against  it,  to  that  house  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  on  their  journal, 
and  proceed  to  reconsider  the  bill.  But  if,  after  such  reconsider- 
ation, two  thirds  of  that  house  shall,  notwithstanding  the  objec- 
tions of  the  president,  agree  to  pass  it,  it  shall,  together  with  his 
objections,  be  sent  to  the  other  house,  by  which  it  shall  likewise 
be  reconsidered,  and,  if  approved  by  two  thirds  of  the  other  house 
also,  it  shall  become  a  law.  But,  in  all  such  cases,  the  votes  of 
both  houses  shall  be  determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  or  against  the  bill  shall  be  entered  on 
the  journal  of  each  house  respectively.  If  any  bill  shall  not  be 
returned  by  the  president  within  seven  days  after  it  shall  have 


50 


been  presented  to  him,  it  shall  be  a  law,  unless  the  legislature,  by 
their  adjournment,  prevent  its  return,  in  which  case  it  shall  not 
be  a  law."* 

Ibid.  p.  376. 

On  the  15th  of  August,  Mr.  Madison  moved  the  following 
amendment  of  this  article  :  — 

"  Every  bill  which  shall  have  passed  the  two  houses  shall,  before 
it  becomes  a  law,  be  severally  presented  to  the  President  of  the 
United  States  and  to  the  judges  of  the  Supreme  Court,  for  the 
revision  of  each.  If,  upon  such  revision,  they  shall  approve  of  it, 
they  shall  respectively  signify  their  approbation  by  signing  it ;  but 
if,  upon  such  revision,  it  shall  appear  improper  to  either,  or  both, 
to  be  passed  into  a  law,  it  shall  be  returned,  with  the  objections 
against  it,  to  that  house  in  which  it  shall  have  originated,  who 
shall  enter  the  objections  at  large  on  their  journal,  and  proceed  to 
reconsider  the  bill ;  but  if,  after  such  reconsideration,  two  thirds 
of  that  house,  when  either  the  president  or  a  majority  of  the 
judges  shall  object,  or  three  fourths,  where  both  shall  object,  shall 
agree  to  pass  it,  it  shall,  together  with  the  objections,  be  sent  to 
the  other  house,  by  which  it  shall  likewise  be  reconsidered,  and  if 
approved  by  two  thirds  or  three  fourths  of  the  other  house,  as 
the  case  may  be,  it  shall  become  a  law."  * 

Ibid.  p.  428. 

In  the  debate  upon  this  motion,  the  power  given  by  the 
proposed  provision  was  alluded  to,  without  exception,  as  a 
"revisionary  power,"  "a  power  to  revise  and  suggest  reasons 
against  the  enactment  of  laws  hastily  passed,"  &c.  This 
amendment  was  rejected.  The  section  was  then  otherwise 
amended  so  as  to  apply  to  orders,  resolutions,  or  votes  of 
congress,  as  well  as  to  bills,  and  so  as  to  require  three 
fourths  of  each  branch  to  pass  an  act  over  the  objections  of 
the  president.  The  draft  of  the  proposed  constitution  was 
subsequently  sent  to  a  committee  on  style,  who  reported  on 

*The  italics  are  mine. 


51 


the  12th  of  September  a  digest  of  the  plan.  It  was  then 
moved  to  reconsider  the  clause  requiring  three  fourths  of 
each  house  to  overrule  the  negative  of  the  president,  and  to 
insert  two  thirds  in  place  of  three  fourths.  In  the  discussion 
upon  this  motion  all  the  speakers  still  treated  the  power 
given  by  this  section  as  a  re  visionary  power,  the  purpose  of 
it  being,  first,  to  defend  the  executive  rights ;  second,  to 
prevent  popular  and  factious  injustice.  The  amendment  was 
agreed  to,  and  the  section  adopted  as  it  was  included  in  the 
draft  of  the  constitution,  as  signed  by  the  members  of  the 
convention  and  afterwards  adopted  by  the  states,  in  the  fol- 
lowing words  :  — 

' '  Every  bill  which  shall  have  passed  the  house  of  representatives 
and  the  senate  shall,  before  it  become  a  law,  be  presented  to  the 
President  of  the  United  States.  If  he  approve,  he  shall  sign  it ; 
but  if  not,  he  shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If,  after 
such  reconsideration,  two  thirds  of  that  house  shall  agree  to  pass 
the  bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two  thirds  of  that  house,  it  shall  become  a  law.  But,  in  all 
such  cases,  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  persons  voting  for  and  against 
the  bill  shall  be  entered  on  the  journal  of  each  house,  respectively. 
If  any  bill  shall  not  be  returned  by  the  president  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  congress,  by  their  adjournment,  prevents  its  return,  in  which 
case  it  shall  not  be  a  law." 

Ibid.  p.  560. 

It  will  be  observed  that  this  provision  corresponded  sub- 
stantially with  that  of  the  Massachusetts  Constitution,  except 
that  the  president  has  by  it  ten  days,  instead  of  five,  in  which 
to  return  a  bill  with  objections,  and  that  if  congress  cut  this 


52 


time  short  by  adjournment  within  the  ten  days,  the  bill  does 
not  become  a  law.* 

The  views  of  those  who  framed  the  United  States  Constitu- 
tion, as  to  the  character  and  extent  of  the  power  given  the 
executive  by  this  provision,  were  very  clearly  set  forth  by 
Mr.  Hamilton  while  the  constitution  was  under  discussion 
before  its  adoption.  He  says,  in  discussing  this  clause  of 
the  constitution,  — 

44  The  qualified  negative  of  the  president  tallies  exactly  with  the 
revisionary  authority  of  the  council  of  revision  of  this  state  [New 
York],  of  which  the  governor  is  a  constituent  part.  In  this 
respect  the  power  of  the  president  would  exceed  that  of  the  gov- 
ernor of  New  York,  because  the  former  would  possess  singly  what 
the  latter  shares  with  the  chancellor  and  judges  ;  but  it  would  be 
precisely  the  same  with  that  of  the  governor  of  Massachusetts, 
whose  constitution  as  to  this  article  seems  to  have  been  the  orig- 
inal from  which  the  convention  have  copied."  f 

The  Federalist,  No.  69,  Hamilton's  Works,  Lodge's 
ed.,  1886,  vol.  IX.  pp.  429,  430. 

Again,  in  discussing  more  at  length  the  nature  of  his 
power,  Mr.  Hamilton  said,  — 

"The  primary  inducement  to  conferring  the  power  in  question 
upon  the  executive  is  to  enable  him  to  defend  himself.  The 
second  one  is  to  increase  the  chances  in  favor  of  the  community 
against  the  passing  of  bad  laws  through  haste,  inadvertence,  or 
design.  The  oftener  the  measure  is  brought  under  examination, 
the  greater  the  diversity  in  the  situations  of  those  who  are  to 
examine,  the  less  must  be  the  danger  of  those  errors  which  fol- 
low from  want  of  due  deliberation,  or  of  those  missteps  which 
proceed  from  the  contagion  of  some  common  passion  or  interest. 
.  .  .  Instead  of  an  absolute  negative,  it  was  proposed  to  give  the 
executive  the  qualified  negative  already  described.  This  is  a 

*  This  last  provision  was  added  to  the  Massachusetts  Constitution  by  amendment 
in  1821.    (See  page  69.) 
t  The  italics  are  mine. 


53 


power  which  would  be  much  more  readily  exercised  than  the 
other.  A  man  who  might  be  afraid  to  defeat  a  law  by  his  single 
veto,  might  not  scruple  to  return  it  for  reconsideration.  ...  A 
direct  and  categorical  negative  has  something  in  the  appearance 
of  it  more  harsh  and  more  apt  to  irritate  than  the  simple  sugges- 
tion of  argumentative  objections  to  be  approved  or  disapproved  by 
those  to  whom  they  are  addressed."  * 

Federalist,  No.  73,  Hamilton's  Works,   Lodge's    ed., 
1886,  vol.  IX.  pp.  458,  461. 

Again,  he  says, — 

4 'This  qualified  negative  is  in  this  state  vested  in  a  council 
consisting  of  the  governor,  with  the  chancellor  and  judges  of  the 
supreme  court,  or  any  two  of  them.  It  has  been  freely  employed 
upon  a  variety  of  occasions,  and  frequently  with  success." 

Federalist,  No.  73,  Hamilton's  Works,  Lodge's  ed., 
vol.  IX.  p.  462. 

In  the  debates  of  the  Pennsylvania  convention  to  ratify  the 
constitution,  the  qualified  negative  given  to  the  president 
by  this  provision  was  also  spoken  of  as  identical  with  the 
power  given  to  the  council  of  revision  by  the  Constitution  of 
New  York  State. 

Pennsylvania  and  Federal  Constitutions,  1787,  1788, 
p.  334. 

In  Hanson's  Essay  upon  the  Federal  Constitution,  pub- 
lished while  it  was  under  discussion,  this  provision  of  the 
constitution  was  also  treated  as  one  subjecting  the  bill  to  the 
revision  of  the  president. 

Ford's  Pamphlets  on  Constitution,  p.  225. 
It  may  safely  be  said  that  there  is  not  a  single  recorded 

*  The  italics  are  mine. 


54 


expression  of  opinion  as  to  the  effect  of  this  constitutional 
provision  by  those  who  framed  the  federal  constitution  or 
discussed  its  provisions  before  its  adoption,  which  does  not 
treat  it  as  giving  only  the  same  power  of  revision  which  was 
given  the  New  York  council  of  revision  by  the  constitution 
of  that  state,  and  which  obviously  could  be  exercised  only 
by  specific  statements  of  objections  to  the  provisions  of  the 
bills  presented  to  them. 

September  7,  1791,  a  convention  met  to  revise  the  Consti- 
tution of  New  Hampshire. 

The  "  form  of  civil  government "  adopted  by  the  congress 
of  New  Hampshire  January  5,  1776,  had  provided  for  a  gov- 
ernment solely  by  a  house  of  representatives  and  a  council, 
acting  as  separate  branches  of  a  legislature,  and  with  no  re- 
vision of  their  acts. 

N.H.  State  Papers,  vol.  VIII.  p.  2. 

The  constitution  framed  by  the  convention  of  June  10, 
1778,  and  which  was  rejected  by  the  people,  had  provided  for 
a  government  solely  by  a  council  and  a  house  of  representa- 
tives, "to  be  styled  the  General  Court  of  the  State  of  New 
Hampshire,  and  to  be  invested  with  the  supreme  power  of 
the  state,"  with  no  check  upon  or  revision  of  their  acts. 

N.H.  State  Papers,  vol.  IX.  pp.  838-840. 

When  the  second  New  Hampshire  constitutional  convention 
assembled  in  June,  1881,  the  New  York  council  of  revision  had 
been  in  existence  nearly  four  years,  and  had  returned  to  the 
legislature  twenty-one  bills  with  full  and  precise  statements  of 
objections  to  their  provisions.  The  adjoining  State  of  Massa- 
chusetts had  also  adopted  in  its  constitution  a  provision  for 
similar  revision  of  the  acts  of  the  legislature  by  the  governor, 
though  he  had  not  then  exercised  it.  Such  a  revision  had 


55 


proved  to  be  practicable  and  salutary,  and  the  convention 
naturally  adopted  it  as  a  part  of  the  constitution  they  framed, 
by  exactly  copying  the  provision  of  the  Massachusetts  Con- 
stitution, except  that  they  provided  that  a  bill  or  resolve 
should  become  a  law  notwithstanding  the  objections  of  the 
governor,  only  by  a  vote  of  three  fourths  of  the  members  of 
each  house  instead  of  a  vote  of  two  thirds,  as  in  Massachu- 
setts and  in  New  York ;  and  also  that  the  bill  or  resolve 
should  have  the  force  of  a  law  if  not  returned  in  eight  days, 
instead  of  five  days  as  in  Massachusetts  and  ten  days  in 

New  York. 

N.H.  State  Papers,  vol.  IX.  p.  858. 

No  record  of  the  debates  of  this  convention  has  been 
found  showing  why  these  changes  from  the  New  York  and 
Massachusetts  provisions  were  made,  but  the  address  of  the 
convention  submitting  the  constitution  to  the  people,  states 
the  reasons  why  this  provision  for  revision  of  the  acts  of  the 
legislature  was  adopted.  Its  language  upon  that  subject  is 
this  : 

"The  legislative  power  we  have  vested  in  the  senate  and  house 
of  representatives  (with  the  reserve  hereafter  mentioned),  each  of 
which  branches  is  to  have  a  negative  on  the  other.  .  .  .  We  have 
given  the  supreme  executive  power  the  right  of  revising  and 
objecting  to  all  acts  passed  by  the  legislature." 

Later  in  the  same  address,  in  referring  to  the  qualified 
negative  of  the  executive,  after  stating  the  manner  of  choice 
of  the  governor,  his  qualifications,  and  his  liability  to  im- 
peachment by  the  legislative  branch,  they  said, — 

"  Thus  controlled  and  checked  himself,  the  convention  thought 
it  reasonable  and  necessary  that  he  in  turn  should  have  some  check 
on  the  legislative  power.  They  therefore  gave  him  the  right  of 
objecting  to  and  suspending,  though  not  the  absolute  control  over, 


56 


the  acts  of  that  body,  which  they  thought  indispensably  necessary 
to  repel  any  encroachments  on  the  executive  power,  and  to  pre- 
serve its  independenc}r." 

N.H.  State  Papers,  vol.  IX.  pp.  847,  850. 

The  provision  of  the  constitution  framed  by  the  conven- 
tion thus  referred  to  in  their  address,  was  as  follows  :  — 

"  No  bill  or  resolve  of  the  senate  or  house  of  representatives 
shall  become  a  law,  and  have  force  as  such,  until  it  shall  have 
been  laid  before  the  governor  for  his  revisal;  and  if  he  shall,  upon 
such  revision,  approve  thereof,  he  shall  signify  his  approbation  by 
signing  the  same  ;  but  if  he  has  any  objection  to  the  passing  of 
such  bill  or  resolve,  he  shall  return  the  same,  together  with  his 
objections  thereto,  in  writing,  to  the  senate  or  house  of  repre- 
sentatives, in  whichsoever  the  same  shall  have  originated."  * 

Then  followed  the  same  provisions  as  in  the  present  con- 
stitution for  reconsideration  by  the  two  houses. 

After  the  sense  of  the  inhabitants  of  the  state  had  been 
taken  upon  the  proposed  constitution  containing  this  pro- 
vision, the  convention  prepared  a  revised  plan,  eighteen 
hundred  copies  of  which  were  distributed  to  the  towns, 
members  of  the  general  court,  in  August,  1782,  and  issued 
therewith  another  address  to  the  inhabitants,  in  which  they 
used  the  following  language  as  to  the  qualified  negative 
given  by  the  proposed  constitution  to  the  governor :  — 

"  We  have  given  the  supreme  executive  power  the  right  of  re- 
vising and  objecting  to  all  the  acts  passed  by  the  legislature,  for 
reasons  hereafter  to  be  mentioned." 

And  thereafter,  in  the  address,  they  gave  their  reasons  in 
the  same  language  as  in  the  first  address,  and  the  language 

*  The  italics  are  mine. 


57 


giving  the  qualified  negative  was  the  same  in  the  revised 
plan  thus  submitted  to  the  people  as  it  was  in  the  first  plan, 
and  as  is  above  quoted. 

This  constitution  did  not  receive  two  thirds  of  the  votes 
of  the  people,  and  was  not  adopted. 

In  August,  1782,  the  convention,  having  framed  another 
constitution,  submitted  it  to  the  people  with  another  ad- 
dress. 

The  provision  in  this  second  constitution  with  reference 
to  revision  of  the  acts  of  the  legislature  and  the  language  of 
the  address  in  reference  to  it,  were  identical  with  those  of 
the  first  constitution  and  address. 

N.H.  State  Papers,  vol.  IX.  pp,  877,  896. 

This  second  constitution  was  not  adopted  by  vote  of  the 
people,  and  in  January,  1783,  the  convention  framed  a  third 
constitution,  which  was  submitted  to  the  people  and  adopted 
by  them  by  a  two-thirds  vote  and  established  as  the  constitu- 
tion of  the  state,  October  31,  1783,  and  is  known  as  the 
constitution  of  1784. 

This  constitution  vested  the  supreme  legislative  power  in 
a  senate  and  a  house  of  representatives,  each  with  a  nega- 
tive on  the  other,  but  with  no  revision  of  or  check  upon  their 
acts  by  the  executive.  The  executive  power  was  given  to  a 
magistrate  called  the  "president  of  the  state,"  elected  by  the 
people,  and  who  presided  in  the  senate  and  had  a  vote  therein 
"  equal  with  that  of  any  other  member,  and  also  a  casting 
vote  in  case  of  a  tie." 

N.H.  State  Papers,  vol.  IX.  pp.  903,  909,  910. 
Early  in  the  year  1783  Thomas  Jefferson  had  prepared  a 


58 


draft  of  a  proposed  constitution  to  be  submitted  to  the  Con- 
stitutional Convention  of  Virginia  in  1783,  in  which  a  pro- 
vision framed  by  him  for  a  qualified  negative  upon  the 
legislative  power  was  as  follows  :  — 

kt  The  governor,  two  councillors  of  state,  and  a  judge  from  each  of 
the  superior  courts  of  chancery,  common  law,  and  admiralty,  shall 
be  a  council  to  revise  all  bills  which  shall  have  passed  both  houses 
of  the  assembly,  in  which  council  the  governor,  when  present,  shall 
preside.  Every  bill,  before  it  becomes  a  law,  shall  be  presented 
to  this  council,  who  shall  have  the  right  to  advise  its  rejection, 
returning  the  bill  with  their  advice  and  reasons  in  writing  to  the 
house  in  which  it  originated,  who  shall  proceed  to  reconsider  said 
bill.  But  if  after  such  reconsideration  two  thirds  of  the  house 
shall  be  of  the  opinion  that  the  bill  should  pass  finally,  they  shall 
pass  and  send  it  with  the  advice  and  written  reasons  of  the  said 
council  of  revision  to  the  other  house,  wherein  if  two  thirds  also 
shall  be  of  the  opinion  that  it  should  pass  finally,  it  shall  there- 
upon become  a  law,  otherwise  it  shall  not.  If  any  bill  presented 
to  the  council  be  not  within  one  week  (exclusive  of  the  day  of  pre- 
senting it)  returned  to  them  with  their  advice  of  rejection  and 
reasons  to  the  house  in  which  it  originated,  or  to  the  clerk  of  the 
said  house  in  case  of  its  adjournment  over  the  expiration  of  a 
week,  it  shall  be  a  law  from  the  expiration  of  the  week.  The  bills 
which  they  [the  council]  approve  shall  become  laws  from  the  time 
of  such  approval."  * 

Jefferson's  Notes  on  Virginia,  Appendix,  p.  322. 

When,  therefore,  the  New  Hampshire  convention  of  179 1 
assembled,  a  constitutional  provision  for  the  revision  and 
qualified  negative  of  legislative  acts  had  been  approved  by 
Jefferson  and  by  the  federal  convention  of  1787,  as  well  as 
by  the  states  of  New  York  and  Massachusetts,  and  the  pro- 
visions on  that  subject  in  the  Federal  Constitution  and  in  the 
Massachusetts  Constitution  were  understood  to  be  identical 

*  See  comments  on  this  draft  in  the  "  Federalist,"  No.  49. 


59 


in  their  effect  with  the  provision  of  the  New  York  Constitu- 
tion establishing  the  council  of  revision. 

The  Xew  York  council  of  revision  had  then  been  in 
existence  more  than  thirteen  years,  and  had  returned  to  the 
legislature  sixty-nine  bills  and  resolves  with  full  and  precise 
objections  and  arguments  against  their  provisions. 

The  governor  of  Massachusetts  had  possessed  the  power 
t  ( >  revise  the  acts  of  the  general  court  of  that  state  for  more 
than  ten  years,  and  though  he  had  returned  but  one  bill  and 
two  resolves  under  it,  these  had  been  returned  with  precise 
and  careful  statements  of  objections  to  their  provisions. 

The  Constitution  of  the  United  States,  with  a  provision 
giving  the  president  power  to  revise  the  acts  of  congress, 
had  been  adopted  about  four  years  (New  Hampshire  having 
ratified  it  without  objection  to  that  provision),*  and  the  con- 
vention naturally  included  such  a  provision  in  the  amend- 
ments and  alterations  which  they  made  to  the  constitution 
of  1784.  They  did  this  by  copying  in  exact  language 
the  provision  which  in  1787  had  been  adopted  in  the  fed- 
eral constitution,  giving  the  president  a  qualified  negative 
upon  legislation,  with  the  exception  that  the  time  within 
which  the  bill  should  become- a  law  without  the  signature  of 
the  governor  was  limited  to  five  days  (as  in  the  original  pro- 
vision of  the  Massachusetts  constitution  of  1780)  instead  of 
ten  days.  (Sec.  44,  X.H.  Const.  1792.) 

This  provision  was  among  the  amendments  which  the 
"committee  on  alterations  and  amendments,"  appointed  by 
the  convention  September  16, 1791,  reported  on  February  8, 
1T'.»2,  and  it  was  reported  by  them  in  its  present  form,  i.e., 
as  a  copy  of  the  qualified  negative  provision  of  the  Federal 
Constitution,  except  that,  as  reported,  it  provided  that  a  bill 

u  Hampshire  ratified  the  Constitution  of  the  United  States  June  21, 1788,  being 
the  ninth  state  to  do  so,  and  this  ratification  made  up  the  number  of  states  necessary 
to  cause  it  to  take  effect  by  its  terms. 


60 


returned  by  the  governor  might  become  a  law  by  the  vote  of 
four  sevenths  of  the  house  in  which  it  originated  and  of  a 
majority  of  the  other  house. 

Journal  N.H.  Const.  Convention  (1791-1792),  pp. 

85,  88,  89. 
N.H.  State  Papers,  vol.  X.  pp.  38,  64. 

On  February  11,  1792,  the  convention  "  proceeded  to  con- 
sider of  the  report  respecting  the  governor's  power  in  legisla- 
tion, or  otherwise  the  negative  that  the  governor  may  have 
on  the  acts  of  the  legislature,  and  the  report  was  accepted 
with  this  alteration,  that  on  the  return  of  a  bill  by  the  gov- 
ernor for  reconsideration  it  shall  require  two  thirds  of  both 
houses  instead  of  four  sevenths  of  one  and  a  majority  of  the 
other." 

Journal  of  Convention,  p.  94. 

N.H.  State  Papers,  vol.  X.  p.  93. 

In  the  Massachusetts  constitution  the  governor  was  re- 
quired to  return  the  bill  "with  his  objections  thereto,"  but  in 
the  Federal  Constitution  and  those  copied  from  it,  as  in  the 
New  Hampshire  constitution, the  word  "thereto"  is  omitted. 
It  appears  clearly,  however,  from  the  debates  in  the  consti- 
tutional conventions  and  the  published  discussions  upon  the 
adoption  of  the  Federal  Constitution,  that  no  other  objections 
were  contemplated  but  objections  "thereto,"  i.e.,  to  the  bill 
itself. 

The  word  "  thereto  "  was  evidently  dropped  by  the  com- 
mittee on  style  in  the  federal  convention,  as  adding  nothing 
to  the  force  of  the  word  "objections,"  though  it  is  still  re- 
tained in  the  Massachusetts  Constitution. 

The  provision  of  the  New  York  Constitution  which  gave 
the  council  of  revision  the  same  power  to  revise  and  nega- 
tive the  acts  of  the  legislature  which  the  Federal  Constitution 


61 


was  intended  to  give  the  president,  was  in  force  from  1777 
to  1821,  a  period  of  forty-four  years.  It  was  administered 
by  a  council  of  revision  of  which  George  Clinton,  John  Jay, 
Chief  Justice  Morris,  Chancellor  Livingston,  Chief  Justice 
Yates,  Chancellor  Kent,  Chief  Justice  Lansing,  Chief  Justice 
Ambrose  Spencer,  and  other  able  and  learned  lawyers  of  that 
state  were  members. 

Six  thousand  five  hundred  and  ninety  acts  of  the  legisla- 
lature  were  presented  to  them  for  revision,  of  which  they 
returned  one  hundred  and  sixty-nine  with  objections,  only 
fifty-one  of  which  were  passed  into  laws  notwithstanding. 
These  objections,  popularly  called  the  vetoes  of  the  council, 
were  in  all  cases  full  and  careful  discussions  of  the  provisions 
of  the  acts  objected  to  by  way  of  argument  addressed  to  the 
legislature.  Thirty-eight  of  them  were  written  by  Chancel- 
lor Kent,  a  larger  number  than  by  any  other  member  of  the 

council. 

See  Street's  New  York  Council  of  Revision. 

This  provision  remained  in  the  Constitution  of  New  York 
until  1821,  when  the  power  given  by  it  to  the  council  of  re- 
vision was  transferred  to  the  governor  by  the  adoption  of  a 
provision  exactly  like  that  of  the  Federal  Constitution.  The 
debate  in  the  constitutional  convention  upon  this  change 
lasted  several  days,  and  was  participated  in  by  Chancellor 
Kent,  Chief  Justice  Spencer,  Martin  Van  Buren,  Peter  R. 
Livingston,  Judge  Platt,  Mr.  Duer,  Mr.  Tallmadge,  Rufus 
King,  Erastus  Root,  and  other  prominent  members  of  the 
convention.  The  report  of  the  debate  covers  one  tenth  of 
the  entire  record  of  the  convention,  and  from  the  beginning 
to  the  end  the  power  conferred  upon  the  executive  by  this 
provision  was  spoken  of  as  a  power  of  revision  only. 

Judge  Platt  said  (it  being  conceded  that  a  qualified  nega- 
tive upon  legislation  was  advisable)  that  the  only  question 


62 


was,  whether  it  shall  be  retained  in  the  council  of  revision, 
or  transmitted  to  the  governor  alone. 

Journal  of  N.Y.  Const.  Convention,  1821,  p.  54. 

Chancellor  Kent  spoke  to  the  same  effect,  and  said  that  as 
the  objections  to  legislation  stated  by  the  council  of  revision 
under  the  then  constitutional  convention  could  be  overcome 
only  by  a  two-thirds  vote  of  both  branches,  he  was  unwilling 
to  vote  to  transfer  the  power  of  revision  to  the  governor  with 
a  provision  (which  was  proposed  in  the  convention)  that  his 
objections  to  bills  could  be  overcome  by  a  majority  vote  of 
both  branches  upon  reconsideration. 

Ibid.  p.  63. 

General  Tallmadge,  chairman  of  the  select  committee  who 
proposed  the  change,  said  that  the  committee  "  only  proposed 
to  sever  the  judiciary  from  the  council  of  revision,  retaining, 
however,  that  feature  in  the  government,"  and  they  had 
adopted  the  language  of  the  Constitution  of  the  United  States 
from  the  simplicity  of  its  expression,  and  because  the  expe- 
rience of  the  nation  had  given  it  construction,  and  that  in 
recommending  the  abolishment  of  the  council  of  revision, 
they  had  acted  with  the  sole  view  of  separating  the  depart- 
ments of  government. 

Ibid.  p.  64. 

Mr.  Van  Buren  said  that  the  purpose  of  the  qualified  nega- 
tive upon  legislation  was  "First,  to  guard  against  hasty  and 
improvident  legislation,  but  more  especially  to  protect  the 
executive  and  judicial  departments  from  legislative  encroach- 
ments." Hasty  and  improvident  legislation,  he  said,  was 
partially  provided  against  by  giving  each  branch  of  the  legis- 
lature a  negative  upon  the  other,  but  as  these  branches  might 
sometimes  happen  to  be  actuated  by  the  same  feelings  and 


63 


passions,  it  was  "necessary  to  establish  a  third  branch  to 
revise  the  proceedings  of  the  two."  Heretofore,  he  said,  we 
have  had  the  revisory  power  in  the  hands  of  the  judiciary 
and  executive  united.  Now  the  people  call  for  its  separa- 
tion, and  "the  report  of  the  committee  proposes  that  the 
power  heretofore  vested  in  the  executive  and  judicial  depart- 
ments should  henceforth  be  transferred  to  the  executive 
alone."  This,  he  said,  in  his  judgment  required  that  the 
objections  of  the  executive  upon  the  revision  of  bills  should 
prevent  the  bills  from  becoming  laws  except  by  the  same 
vote  required  to  make  them  laws  notwithstanding  objections 
by  the  council  of  revision,  that  is,  a  two-thirds  vote,  and  not 
a  majority,  as  proposed. 

Ibid.  pp.  70,  76. 

Kufus  King  said  that  the  necessity  for  the  change  of  this 
provision  proceeded  from  the  conviction  that  the  judiciary 
should  no  longer  be  vested  with  any  portion  of  the  revision- 
ary  power,  and  that  the  provision  proposed  (that  is,  the  one 
found  in  the  Federal  Constitution)  simply  vested  in  the  gov- 
ernor "  the  same  power  which  was  vested  in  the  council  of 
revision  "  by  the  original  New  York  Constitution. 

Ibid.  pp.  77,  89. 

To  the  same  effect  were  the  remarks  of  Chief  Justice 
Spencer,  Mr.  Root,  Mr.  Livingston,  and  other  gentlemen  who 
discussed  this  matter.  An  examination  of  this  debate,  and 
of  the  action  of  the  convention  upon  this  point,  shows  con- 
clusively that  all  these  gentlemen  and  the  whole  convention 
understood  that  the  qualified  negative  upon  legislation  given 
by  the  Federal  Constitution  to  the  president,  and  by  the 
Massachusetts  Constitution  to  the  governor,  was  identical  with 
that  given  by  the  original  Constitution  of  New  York  to  the 


64 


council  of  revision,  that  is,  that  it  was  a  power  to  examine 
and  revise  bills  passed  by  both  branches  of  the  legislature, 
and  to  prevent  their  passage  except  by  a  two-thirds  vote,  by 
a  statement  of  objections  to  the  bills  themselves.  The  con- 
vention were  unanimous  in  transferring  the  power  of  revi- 
sion from  the  council  of  revision  to  the  executive  alone,  and 
the  discussion  was  upon  the  question  whether  a  two-thirds 
vote  of  each  house  should  be  required  to  pass  bills  notwith- 
standing the  objections  of  the  governor,  as  was  required  in 
the  case  of  bills  returned  with  objections  by  the  council  of 
revision,  or  whether  a  majority  of  each  branch  should  be 
sufficient. 

All  the  writers  upon  the  constitution  have  regarded  the 
qualified  negative,  or  so-called  veto  power,  as  a  revisionary 
power  only.  They  have  all  discussed  it  as  a  power  to  return 
the  bill  for  consideration  only  upon  objections  to  its  provisions. 

Mr.  Rawle  spoke  of  this  power  as  "  this  great  share  of  the 
legislative  power  given  to  the  president,"  and  regarded  its 
value  as  depending  upon  the  fact  that,  by  the  use  of  it,  the 
executive  participated  in  the  legislative  power,  and  thereby 
called  the  two  branches  of  the  legislature  to  a  reconsidera- 
tion of  their  measures,  and  by  requiring  the  measures  to  be 
entered  on  the  journal,  and  the  yeas  and  nays  to  be  required, 
enabled  the  people  to  decide  on  the  soundness  of  the  objec- 
tions. 

Rawle  on  the  Const.,  pp.  54,  55. 

See  also,      Wilson's  Law  Lectures,  pp.  449,  445. 

Chancellor  Kent  speaks  of  the  importance  of  the  two  houses 
having  the  objections  of  the  president  in  opposition  to  the 
bill  spread  at  large  upon  their  journals  to  aid  them  in  recon- 
sideration. 

Kent's  Com.  I.  240. 


65 


Judge  Story,  speaking  of  this  power,  said,  - 

"  As  a  qualified  negative  it  does  not,  like  an  absolute  negative, 
present  a  categorical  and  harsh  resistance  to  the  legislative  will, 
which  is  so  apt  to  engender  strife  and  nourish  hostility.  It  as- 
sumes the  character  of  a  mere  appeal  to  the  legislature  itself,  and 
asks  a  revision  of  its  own  judgment.  It  is  in  the  nature,  then, 
merely  of  a  rehearing  or  a  reconsideration,  and  involves  nothing 
to  provoke  resentment  or  rouse  pride.  A  president  who  might 
hesitate  to  defeat  a  law  by  an  absolute  veto,  might  feel  little 
scruple  to  return  it  for  reconsideration  upon  reasons  and  argu- 
ments suggested  on  the  return." 

Story  on  the  Constitution  (Cooley's  ed.)  section  888. 

Mr.  Curtis  speaks  of  it  as  follows  :  — 

"  The  two  important  differences  between  the  negative  thus  vested 
in  the  President  of  the  United  States  and  that  which  belongs  to 
the  King  of  England  are,  that  the  former  is  a  qualified  while  the 
latter  is  an  absolute  power  to  arrest  the  passage  of  a  law ;  and 
that  the  one  is  required  to  render  to  the  legislature  the  reasons  for 
his  refusal  to  approve  a  bill,  while  the  latter  renders  no  reasons, 
but  simply  answers  that  he  will  advise  of  the  matter,  which  is  the 
parliamentary  form  of  signifying  a  refusal  to  approve.  The  pro- 
vision in  our  constitution  which  requires  the  president  to  com- 
municate to  the  legislature  his  objections  to  a  bill,  was  rendered 
necessary  by  the  power  conferred  upon  two  thirds  of  both  houses 
to  make  it  a  law  notwithstanding  his  refusal  to  sign  it.  kBy  this 
power,  which  makes  the  negative  of  the  president  a  qualified  one 
only,  the  framers  of  the  constitution  intended  that  the  two  houses 
should  take  into  consideration  the  objections  which  may  have  led 
the  president  to  withhold  his  assent,  and  that  his  assent  should  be 
dispensed  with,  if,  notwithstanding  those  objections,  two  thirds  of 
both  houses  should  still  approve  of  the  measure.  These  provisions, 
therefore,  on  the  one  hand,  give  to  the  president  a  real  participa- 
tion in  acts  of  legislation,  and  impose  upon  him  a  real  responsi- 
bility for  the  measures  to  which  he  gives  his  official  approval,  while 
they  give  him  an  important  influence  over  the  final  action  of  the 
legislature  upon  those  which  he  refuses  to  sanction ;  and,  on  the 


66 


other  hand,  they  establish  a  wide  distinction  between  his  negative 
and  that  of  the  King  in  England.  The  latter  has  none  but  an 
absolute  "  veto  ;  "  if  he  refuses  to  sign  a  bill,  it  cannot  become  a 
law ;  and  it  is  well  understood  that  it  is  on  account  of  this  abso- 
lute effect  of  the  refusal  that  this  prerogative  has  been  wholly  dis- 
used since  the  reign  of  William  III.,*  and  that  the  practice  has 
grown  up  of  signifying,  through  the  ministry,  the  previous  opposi- 
tion of  the  executive,  if  any  exists, while  the  measure  is  under  discus- 
sion in  parliament.  It  is  not  needful  to  consider  here  which  mode 
of  legislation  is  theoretically  or  practically  the  best.  It  is  suffi- 
cient to  notice  the  fact,  that  the  absence  from  our  system  of  official 
and  responsible  advisers  of  the  president,  having  seats  in  the  legis- 
lature, renders  it  impracticable  to  signify  his  views  of  a  measure 
while  it  is  under  the  consideration  of  either  house.  For  this  rea- 
son, and  because  the  president  himself  is  responsible  to  the  people 
for  his  official  acts,  and  in  order  to  accompany  that  responsibility 
with  the  requisite  power  both  to  act  upon  reasons  and  to  render 
them,  our  constitution  has  vested  in  him  this  peculiar  and  qualified 
negative." 

Curtis'  History  of  the  Constitution,  vol.  II.  book  IV. 
ch.  9,  pp.  265-267. 

"  This  power  was  vested  in  the  president,  doubtless  as  a  guard 
against  hasty  or  inconsiderate  legislation,  and  against  any  act  in- 
advertently passed  which  might  seem  to  encroach  on  the  just 
authority  of  other  branches  of  the  government." 

Webster's  Works,  vol  I.  p.  267. 

For  discussion  of  the  effect  of  the  use  of  the  veto  power 
in  connection  with  the  power  of  the  executive  to  influence 
legislation  by  use  of  the  appointing  power,  see  Webster's 
Works,  vol.  II.  pp.  236,  237.  See,  also,  for  further  re- 
marks by  Webster  on  the  use  of  the  veto  power,  Webster's 
Works,  vol.  III.  p.  416. 

*This  is  not  correct.  It  was  exercised  once  since  by  Queen  Anne,  who  vetoed  the 
Scotch  Militia  bill  in  1807. 


67 


An  examination  of  the  provisions  of  the  Constitution  of  the 
United  States  and  of  the  different  state  constitutions  (a  sum- 
mary of  which  is  given  in  the  Appendix,  pp.  32  et  seq.), 
giving  the  executive  a  qualified  negative  upon  the  legislative 
branch  of  the  government,  shows  clearly  that  one  primary 
purpose  of  them  all  is  to  secure  to  the  executive  proper 
time  to  examine  and  deliberate  upon  bills  presented  to 
him,  and,  if  he  does  not  approve  them,  to  state  fully  his 
objections  to  their  provisions.  The  Constitution  of  the 
United  States  provides  that  the  president  may  return  the  bill 
with  objections,  within  ten  days  after  it  is  presented  to  him, 
but  that  if  "the  congress,  by  their  adjournment,  prevent  its 
return,  the  bill  shall  not  be  a  law."  In  Connecticut,  Iowa, 
Indiana,  Kentucky,  Minnesota,  South  Carolina,  and  Wis- 
consin, the  governor  may  prevent  a  bill  from  becoming  a 
law  by  returning  it,  with  objections,  within  three  days  from 
the  time  it  is  presented  to  him.  In  Alabama,  Arkansas, 
Florida,  Georgia,  Louisiana,  Maine,  Massachusetts,  Missis- 
sippi, New  Hampshire,  New  Jersey,  Nevada,  Nebraska, 
Oregon,  Tennessee,  Vermont,  Virginia,  and  West  Virginia, 
he  may  return  it  within  five  days.  In  Maryland,  he  may 
return  it  within  six  days.  In  California,  Colorado,  Illinois, 
Kentucky,  Michigan,  Missouri,  New  York,  Pennsylvania, 
and  Texas,  he  may  return  it  within  ten  days. 

Why  all  these  careful  provisions  to  secure  to  the  execu- 
tive time  for  the  examination  of  bills  and  for  deliberation 
upon  their  merits  and  the  statement  of  any  objections  to  their 
provisions,  if  he  can  perform  his  duty  under  the  constitution 
by  simply  refusing  to  examine  them  or  to  express  any  opin- 
ion as  to  their  merits,  and  negative  them  by  the  mere  state- 
ment of  objections  to  signing  them  and  not  to  the  bills  them- 
selves? Again,  the  examination  of  a  bill  is  as  essential  to 
the  disapproval  of  it  by  a  return  of  it  with  objections,  as  it  is 


68 


to  the  approval  of  it  by  signing  it.  Can  it  be  claimed  that 
the  executive  performs  his  duty  under  the  constitution  by 
signing  a  bill  without  examination  of  it  and  with  a  statement 
upon  the  bill  that  he  expresses  no  opinion  as  to  the  merits 
of  the  bill  by  thus  signing  it  ?  The  signature  of  the  execu- 
tive to  a  bill  implies  an  examination  of  it,  because  it  is  only 
"  if  he  approve  it "  that  he  is  to  sign  it.  But  would  the  mere 
signing  a  bill  with  a  written  statement  upon  it  that  it  was 
thus  signed  without  any  examination  and  with  no  opinion  as 
to  its  merits,  be  an  exercise  of  the  power  to  approve? 

In  Massachusetts,  by  the  original  constitution  of  1780,  the 
question  whether  if  the  legislature,  by  its  adjournment,  ren- 
dered it  impossible  for  the  governor  to  return  a  bill  to  the 
house  in  which  it  originated  within  the  time  thus  limited  at 
the  session  at  which  the  bill  is  presented  to  him,  he  could 
exercise  his  qualified  negative  by  returning  it  with  his  objec- 
tions to  that  house  in  which  it  originated,  at  its  next  session, 
within  the  time  limited,  excluding  the  time  which  elapsed 
during  the  preceding  session,  was  left  uncertain,  the  pro- 
vision being  simply  that  if  the  bill  should  not  be  returned 
by  the  governor  within  five  days  after  it  was  presented  to 
him,  it  should  have  the  force  of  a  law.  In  1810  the  gov- 
ernor of  the  state  acted  upon  the  assumption  that  he  could 
negative  a  bill  in  that  manner ;  but  the  house  to  which  he 
returned  it  on  the  first  day  of  its  next  session,  with  objections, 
refused  to  reconsider  the  bill,  on  the  ground  that  the  return 
was  too  late,  although  the  legislature  which  passed  the  bill 
had  adjourned  before  the  five  days  elapsed. 

The  result  of  this  construction  was  that  the  legislature 
could  not  be  adjourned  until  after  all  bills  were  signed  or 
returned  with  objections  for  reconsideration,  or  the  five  days 
had  elapsed  within  which  the  governor  might  return  them 
with  objections,  so  that  they  became  laws  without  his  signa- 


69 


ture.  To  remedy  this  difficulty  and  remove  the  uncertainty 
as  to  the  true  construction  of  this  provision  of  the  constitu- 
tion, it  was  amended  in  1820,  by  providing  that, — 

"  If  any  bill  or  resolve  shall  be  objected  to  or  not  approved  of 
by  the  governor,  and  if  the  general  court  shall  adjourn  within  five 
days  after  the  same  shall  have  been  laid  before  the  governor  for 
his  approbation  and  thereby  prevent  his  returning  it  with  his  ob- 
jections, as  provided  by  the  constitution,  such  bill  or  resolve  shall 
not  become  a  law  nor  have  force  as  such." 

The  reason  stated  in  the  convention  for  this  change  was 
that  it  was  plainly  the  intention  of  the  framers  of  the  con- 
stitution that  the  governor  should  have  five  days  within 
which  to  examine  and  deliberate  upon  bills  presented  to  him, 
and  that  therefore,  if  the  legislature  by  its  adjournment  pre- 
vent his  having  that  time,  the  bills  which  he  had  thus  been 
deprived  of  the  constitutional  time  for  examining  ought  not 
to  become  laws. 

Journal  Mass.  Constitutional  Convention,  1820,  p.  97. 

The  Presidents  of  the  United  States  since  Washington 
have  returned  bills  with  objections  as  follows  :  Madison,  5  ; 
Monroe,  1;  Jackson,  13;  Tyler,  10;  Polk,  3;  Pierce,  10; 
Buchanan,  8  ;  Lincoln,  1  ;  Johnson,  21 ;  Grant,  42  (including 
4  private  pension  bills)  ;  Hayes,  12  ;  Arthur,  4 ;  Cleveland, 
272  (including  243  private  pension  bills).*  The  messages 
returning  these  bills  have,  without  a  single  exception,  been 
statements  more  or  less  extended  of  objections  to  the  pro- 
visions of  the  bills  returned.  An  examination  of  them  shows 
conclusively  that  the  presidents  have  uniformly  treated  the 
constitutional  provision  giving  the  executive  a  qualified 
negative  upon  congress,  as  requiring  the  president  to  examine 

*  Veto  Messages  of  Presidents,  1792  to  1888. 


70 


into  the  merits  of  the  legislation,  and  if  he  does  not  approve 
the  bill  to  return  it  with  specific  objections  to  its  provisions. 
The  most  full  statement  upon  this  point  was  by  President 
Buchanan  in  a  message  to  the  senate  February  1,  1860, 
stating  why  he  retained  the  bill  making  an  appropriation  for 
deepening  the  channel  over  the  Saint  Clair  flats  until  after 
the  adjournment  of  congress.  He  said,  — 

44  The  bill  was  presented  to  me  on  the  last  day  of  the  last  con- 
gress. It  is  scarcely  necessary  to  observe  that,  during  the  closing 
hours  of  a  session,  it  is  impossible  for  the  president,  on  the  instant, 
to  examine  into  the  merits  or  demerits  of  an  important  bill,  in- 
volving, as  this  does,  grave  questions,  both  of  expedience  and  of 
constitutional  power,  with  that  care  and  deliberation  demanded  by 
his  public  duty,  as  well  as  by  the  best  interests  of  the  country.  For 
this  reason,  the  constitution  has  in  all  cases  allowed  him  ten  days 
for  deliberation,  because,  if  a  bill  be  presented  to  him  within  the 
last  ten  days  of  the  session,  he  is  not  required  to  return  it  either 
with  an  approval  or  a  veto,  but  may  retain  it,  "  in  which  case  it 
shall  not  be  a  law." 

"  Whilst  an  occasion  can  rarely  occur  when  so  long  a  period  as 
ten  days  would  be  required  to  enable  the  president  to  decide 
whether  he  should  approve  or  veto  a  bill,  yet,  to  deny  him  even 
two  days  on  important  questions  before  the  adjournment  of  each 
session  for  this  purpose,  as  recommended  by  a  former  annual  mes- 
sage, would  not  only  be  unjust  to  him,  but  a  violation  of  the  spirit 
of  the  constitution.  To  require  him  to  approve  a  bill  when  it  is 
impossible  he  could  examine  into  its  merits,  would  be  to  deprive 
him  of  the  exercise  of  his  constitutional  discretion,  and  convert 
him  into  a  mere  register  of  the  decrees  of  congress.  I  therefore 
deem  it  a  sufficient  reason  for  having  retained  the  bill  in  question, 
that  it  was  not  presented  to  me  until  the  last  day  of  the  session. 

44  Since  the  termination  of  the  last  congress,  I  have  made  a  tho- 
rough examination  of  the  questions  involved  in  the  bill  to  deepen 
the  channel  over  the  Saint  Clair  flats,  and  now  proceed  to  express 
the  opinions  which  I  have  formed  upon  the  subject." 

The  present  industrious  Chief  Magistrate  of  the  United 


71 


States  has  added  to  the  arduous  duties  of  his  office  by  the 
careful  examination  and  precise  statement  of  objections  to 
two  hundred  and  forty-three  private  pension  bills,  involving 
in  many  cases  an  extended  examination  of  records  and  doc- 
uments, all  of  which  he  might  easily  have  avoided  if  he  had 
understood  that  he  could  negative  the  bills  without  exam- 
ination by  returning  them  simply  with  objections  to  signing 
them  because  he  thought  congress  was  passing  too  many 
such  bills,  as  he  evidently  did. 

In  New  Hampshire  this  practical  construction  has  been 
clear  and  conclusive  as  to  the  duty  of  the  governor  to  ex- 
amine and  express  his  opinion  of  the  merits  of  bills  returned 
for  nearly  a  hundred  years. 

A  summary  of  the  contents  of  all  the  messages  of  the  gov- 
ernors returning  bills  not  signed  since  the  adoption  of  the 
constitution  in  1792,  is  contained  in  the  Appendix,  pp.  1-31. 
It  shows  that  the  governors  have  returned  48  bills  and  re- 
solves with  objections  ;  viz.,  Governor  Gilman  returned  14, 
Governor  Langdon  6,  Governor  Plummer  14,  Governor  Bell 
4,  Governor  Badger  1,  Governor  Hill  1,  Governor  Steele  2, 
Governor  Baker  3,  Governor  Gilmore  4,  Governor  Smyth  1, 
Governor  Harriman  1,  Governor  Prescott  1,  Governor  Hale 
1,  Governor  Currier  1,  Governor  Sawyer  5  (including  the 
one  under  discussion). 

All  the  communications  returning  these  bills  and  resolves 
(except  that  under  consideration,  and  one  of  Governor  Cur- 
rier in  1885,  returning  a  bill  at  the  request  of  the  house) 
have  been  precise  statements  of  objections  to  the  bills  as  the 
result  of  an  examination  and  consideration  of  their  provis- 
ions. 

William  Plummer,  of  Epping,  was  one  of  the  most  active 
and  influential  members  of  the  New  Hampshire  constitutional 
convention  of  1791,  and  chairman  of  the  committee  which 


72 


prepared  that  portion  of  the  draft  of  the  constitution  sub- 
mitted to  the  people  containing  the  provision  for  the  quali- 
fied negative  of  the  governor. 

Journal  of  Convention,  pp.  150,  160. 

He  was  afterwards  governor  of  the  state  for  four  years. 
During  his  term  of  office  he  returned  to  one  branch  or  the 
other  of  the  general  court  fourteen  bills  and  resolves  without 
his  approval,  and  the  particularity  with  which  he  stated  his 
objections  to  the  provision  of  each  indicated  what  he,  and 
doubtless  all  others  who  were  members  of  the  convention, 
considered  to  be  the  nature  and  extent  of  the  power  con- 
ferred upon  the  governor  by  this  provision  of  the  constitu- 
tion. 

Washington  was  president  of  the  convention  which  framed 
the  United  States  Constitution,  and  when,  as  the  first  presi- 
dent under  it,  he  had  occasion  to  return  bills  to  congress 
without  his  signature,  he  did  so  with  messages  which  showed 
clearly  what  he  considered  the  duty  and  power  of  the  execu- 
tive under  this  provision  of  the  constitution  was.  The  mes- 
sage stating  objections  to  the  first  bill  returned  by  him  was 
as  follows  :  — 

"  Gentlemen  of  the  House  of  Representatives : 

"  I  have  maturely  considered  the  act  passed  by  the  two  houses, 
entitled  '  An  act  for  an  apportionment  of  representatives  among 
the  several  states,  according  to  the  first  enumeration,'  and  I  re- 
turn it  to  your  house,  wherein  it  originated,  with  the  following 
objections  :  — 

"First.  The  constitution  has  prescribed  that  representatives 
shall  be  apportioned  among  the  several  states  according  to  their 
respective  numbers  ;  and  there  is  no  one  proportion  or  divisor 
which,  applied  to  the  respective  numbers  of  the  states,  will  yield 
the  number  and  allotment  of  representatives  proposed  by  the 
bill. 


73 


ktThe  constitution  has  also  provided  that  the  number  of  rep- 
resentatives shall  not  exceed  one  for  every  thirty  thousand,  which 
restriction  is,  by  the  context,  and  by  fair  and  obvious  construc- 
tion, to  be  applied  to  the  separate  and  respective  states,  and  the 
bill  has  allotted  to  eight  of  the  states  more  than  one  for  every 
thirty  thousand. 

"G.  WASHINGTON." 

February  29,  1797,  Washington  returned  to  the  house 
"  An  act  to  ascertain  and  fix  the  military  establishment  of 
the  United  States,"  saying  that  he  had  "maturely  considered 
the  bill,  and  returned  it  with  his  objections,"  which  he  then 
stated  in  order,  first,  second,  third,  <&c.,  as  in  his  first  mes- 
sage, all  of  them  being  precise  objections  to  the  provisions 
of  the  bill.  Upon  reconsideration  of  these  bills,  they  both 
failed  of  a  passage  notwithstanding  the  objections,  and  new 
bills,  in  which  the  objections  were  obviated,  were  passed 
and  approved. 

Veto   Messages   of    the    Presidents    of    the    United 
States,  pp.  9,  10. 

The  language  of  the  other  presidents  in  their  messages 
returning  bills  shows  clearly  that  they  all  regarded  it  as 
essential  for  them  to  consider  the  bills  and  state  objections 
to  their  merits.  President  Madison,  who,  as  a  member  of 
the  convention  that  framed  the  constitution,  took  a  promi- 
nent part  in  the  discussion  of  the  article  giving  the  president 
power  to  revise  and  negative  bills  passed  by  congress,  began 
four  of  his  five  messages  returning  bills  by  saying,  "  Having 
examined  and  considered  the  bill,"  &c.  His  fifth  message 
he  began  by  saying,  "Having  bestowed  on  the  bill  entitled 
'  An  act  to  incorporate  the  subscribers  to  the  Bank  of  the 
United  States  of  America,'  that  full  consideration  which  is 
due  to  the  great  importance  of  the  subject,  and  dictated  by 
the  respect  which  I  feel  for  the  two  houses  of  congress,  I 


74 


am  constrained  to  return  it  with  my  objections  to  the 
same  ; "  and  closed  his  message  by  saying  that  "  in  discharg- 
ing this  painful  duty  of  stating  objections  to  a  measure 
which  has  undergone  the  deliberations  and  received  the 
sanction  of  the  two  houses  of  the  national  legislature,  I  con- 
sole myself  with  the  reflection  that  if  they  have  not  the 
weight  which  I  attach  to  them,  they  can  be  constitutionally 
overruled." 

President  Monroe  began  his  only  message  returning  a 
bill  (that  for  the  preservation  and  repair  of  the  Cumberland 
road)  by  saying  that  "Having  duly  considered  the  bill," 
&c. ;  and  further  said,  "  Having  stated  my  objections  to  the 
bill,  I  should  now  cheerfully  communicate  at  large  the 
reasons  on  which  they  are  founded  if  I  had  time  to  reduce 
them  to  such  form  as  to  include  them  in  this  paper."  And 
later  in  the  same  day  he  transmitted  a  message  giving  his 
reasons  at  very  great  length. 

President  Jackson  began  his  first  message  returning  a  bill 
by  saying,  "I  have  maturely  considered  the  bill,"  &c.  ;  and 
then  proceeded  to  state  objections  to  the  provisions  of  the 
bill  at  length ;  and  instead  of  saying  at  the  close,  as  the 
governor  of  New  Hampshire  did  in  the  message  under  con- 
sideration, "I  VETO  THE  BILL,"  he  said,  " / now  respectfully 
return  the  bill  which  has  been  under  consideration,  for  your 
further  deliberation  and  judgment ." 

Neither  President  Jackson  nor  President  Tyler,  in  any  of 
their  numerous  messages  returning  acts  of  congress,  failed 
to  state  distinctly  that  they  had  "maturely  considered,"  or 
"carefully  considered,"  or  "fully  considered"  the  bills  them- 
selves. The  same  course  has  been  followed  by  all  the  presi- 
dents of  the  United  States  in  substantially  all  the  messages 
returning  bills  unsigned,  and,  in  addition,  none  of  them  fail 
to  show  a  careful  examination  of  the  merits  of  the  bills 


75 


returned,  and  to  give  full  and  precise  statements  of  objec- 
tions to  their  provisions. 

December  5,  1833,  President  Jackson  returned  to  the 
senate  "  An  act  to  appropriate  for  a  limited  time  the  pro- 
ceeds of  the  sales  of  the  public  lands  of  the  United  States, 
and  for  granting  lands  to  certain  states,"  with  a  message  say- 
ing that  he  received  it  at  the  close  of  the  last  session  of  con- 
gress, but  the  brief  period  then  remaining  before  the  rising 
of  congress,  and  the  extreme  pressure  of  official  duties  un- 
avoidable on  such  occasions,  did  not  leave  him  "  sufficient 
time  for  that  full  consideration  of  the  subject  which  was  due 
to  its  great  importance  ;  "  and  then  proceeded  very  much  at 
length  to  discuss  the  merits  of  the  bill  and  state  his  objec- 
tions to  it.  It  was  with  reference  to  the  retention  of  this 
bill  that  Henry  Clay  wrote  to  ex-President  Madison  asking 
whether,  in  his  opinion,  the  president  had  not  violated  the 
constitution  by  thus  retaining  the  bill  and  not  returning  it 
approved  or  disapproved.  In  Mr.  Madison's  reply  he  says : 

"It  is  obvious  the  constitution  meant  to  allow  the  president  an 
adequate  time  to  consider  the  bill,  and,  on  the  other  hand,  that 
congress  should  have  time  to  consider  and  overrule  his  objections  ; 
and  in  order  to  qualify  the  retention  of  a  bill  by  the  president,  the 
first  inquiry  is  whether  a  sufficient  time  was  allowed  him  to  decide 
it  on  its  merits;  the  next,  whether,  with  a  sufficient  time  to  pre- 
pare his  objections,  he  unnecessarily  put  it  out  of  the  power  of 
congress  to  decide  upon  it."  * 

Madison's  Works,  vol.  IV.  p.  299. 

With  the  exception  of  the  message  of  Governor  Ames,  of 
Massachusetts,  returning  the  bill  for  the  division  of  the  town 
of  Beverly,  in  May,  1887,  and  that  of  Governor  Sawyer,  of 
^  Hampshire,  returning  the  bill  under  discussion,  in 

*  The  italics  are  mine. 


October  of  the  same  year,  the  uniform  and  unbroken  prac- 
tical construction  of  this  constitutional  provision  has  been 
that  it  required  the  examination  of  the  bills  themselves  and 
a  statement  of  opinion  as  to  their  merits.  Neither  of  these 
governors  was  a  lawyer,  and  it  is  evident  that  they  had  no 
legal  advice  in  the  preparation  of  these  messages.  They 
were  both  anxious  to  disapprove  what  they  believed  to  be 
corrupt  practices,  and  did  not  stop  to  inquire  whether  the 
constitution  had  authorized  them  to  refuse  to  approve  or 
disapprove  the  acts  of  the  legislature  for  that  purpose. 

The  message  of  Governor  Ames  indicates  clearly  that  he 
did  not  approve  of  the  bill  to  divide  Beverly  ;  but  until  he 
returned  this  bill  without  a  statement  of  specific  objections 
to  its  provisions,  for  the  purpose,  as  he  said,  of  rebuking 
the  conduct  of  those  who  had  procured  its  passage,  it  had 
never  occurred  to  any  council  of  revision,  to  any  president 
of  the  United  States,  or  to  any  governor  of  any  state,  that 
the  power  to  approve  or  disapprove  the  acts  of  congress  or 
of  the  state  legislatures  could  be  exercised  without  an  exam- 
ination of  them,  and  an  expression  of  opinion  as  to  their 
merits. 

There  are  very  few  reported  cases  in  which  the  qualified 
negative  of  the  executive  upon  legislation  has  been  discussed, 
but  in  all  the  judicial  opinions  which  have  in  any  manner 
considered  the  question,  the  courts  have  treated  this  power 
as  one  of  revision  only,  requiring  by  the  executive  an  exam- 
ination of  the  bill  and  a  statement  of  objections  to  its  provis- 
ions. 

In  Harpending  v.  Haight,  39  California,  189,  which  was 
a  petition  for  mandamus  to  the  governor  to  compel  him  to 
authenticate  and  deposit  with  the  secretary  of  state  a  bill 
which  had  passed  both  branches  and  been  presented  to  .him, 
but  which  he  claimed  had  been  returned  to  the  legislature 


77 


by  sending  it  to  the  chamber  of  the  house  in  which  it  origi- 
nated with  a  message  stating  objections  to  it,  and  which  the 
messenger,  finding  that  house  not  in  session,  had  returned  with 
the  message  to  the  governor,  the  court  held  that  the  bill  had 
not  been  returned  to  the  house  in  which  it  originated,  within 
the  meaning  of  the  constitution,  and  therefore  had  become 
a  law  by  not  being  returned  to  that  house  with  objections 
within  the  time  limited  by  the  constitution  for  such  return, 
and  that  the  governor  could  be  ordered  by  mandamus  to 
authenticate  the  bill  and  deposit  it  with  the  secretary  of  state 
as  required  by  the  statute  of  California.  In  discussing  the 
question  whether  the  governor  made  the  return  of  the  bill 
required  by  the  constitution,  the  court  said,  — 

"There  can  be  doubt  whatever  of  the  meaning  of  the  word 
'return,'  as  used  in  this  connection  in  the  constitution.  As  ap- 
plicable to  the  bill  itself,  it  is  equivalent  to  the  word  ;  presented  ' 
as  previously  used  in  the  same  sentence.  The  bill  must,  before  it 
becomes  a  law,  be  '  presented  to  the  governor.'  It  might  be 
merely  exhibited  to  that  officer ;  and  even  if  it  should  be  imme- 
diately thereafter  taken  away  or  withdrawn,  it  might  be  contended 
that  it  had,  nevertheless,  been  '  presented  '  within  the  very  letter 
of  the  constitution.  But  when  we  come  to  reflect  that  the  only 
purpose  for  which  the  bill  is  to  be  '  presented  to  the  governor '  is 
to  afford  him  an  opportunity  to  deliberately  consider  its  provisions 
and  prepare  his  objections,  if  any  he  have,  to  its  passage,  we 
would  instinctively  reject  such  a  presentation  as  being  fictictious  — 
merely  spurious  —  and  certainly  not  that  one  contemplated  by  the 
constitution,  because  it  would  defeat,  rather  than  promote,  the 
very  objected  intended. 

"And  so,  upon  the  other  hand,  when  we  come  to  consider  the  cor- 
responding duty  of  the  executive  to  '  return '  the  bill  to  the  senate 
in  this  case,  we  know  by  attending  to  the  results  to  be  brought 
about  by  such  '  return '  that  it  must  be  a  step  taken  by  which  his 
own  time  for  deliberation  is  ended,  and  that  for  the  deliberation 
of  the  senate  is  begun  ;  that  the  bill  itself  must  be  put  beyond  the 
executive  possession  ;  that  it  must  be  placed  into  the  possession, 


78 


actual  or  potential,  of  the  senate  itself;  and  that,  as  part  of  this 
return,  the  executive  objections  to  the  passage  of  the  bill  must  be 
stated.  For,  unless  these  things  be  effected  by  the  return,  how 
can  the  senate  enter  the  bill  and  executive  objections  upon  its 
journal,  or  in  what  way  proceed  to  the  consideration  of  the  objec- 
tions themselves?  Yet  the  constitution  enjoins  upon  the  senate 
the  performance  of  these  several  acts  upon  the  return  of  the  .bill 
and  objections  to  it.  We  think  it  clear  that  the  presentation  of  a 
bill  to  the  governor  made  by  the  legislature,  under  such  circum- 
stances as  that  he  is  prevented  from  considering  its  provisions,  and 
a  return  of  a  bill  made  to  the  house  in  which  it  originated  by  the 
executive  —  but  so  made  that  the  house  can  neither  reconsider  the 
bill  nor  examine  the  objections  to  its  passage  —  do  not  in  either 
case  constitute  the  presentation  or  return  required  by  the  constitu- 
tion." 

In  discussing  this  provision  of  the  constitution  in  Wolf 
v.  McCall,  76  Va.  885,  the  court  said  that  it  requires 
bills  "  to  be  presented  to  the  governor  in  such  a  way  that  he 
will  be  able  to  consider  the  merits  or  demerits  of  a  bill, 
deliberate  upon  it,  and  finally  determine  whether  he  will 
approve  or  disapprove  of  it. " 

It  thus  appears  not  only  by  the  proper  construction  of  the 
language  of  this  provision  of  the  constitution,  but  by  the  his- 
tory of  its  growth  and  adoption  and  by  its  practical  construc- 
tion for  a  hundred  years,  that  an  examination  and  expression 
of  opinion  of  the  bill  itself  either  by  approval  of  it  by  signing 
it  or  by  the  statement  of  objections  to  it  which  are  the  result 
of  such  examination,  is  essential  to  the  exercise  of  the  power 
given  by  it,  and  that  the  mere  return  of  a  bill  without  entering 
upon  its  merits  and  with  no  objections  to  the  bill  itself  is  of 
no  effect. 

It  is  said  by  plaintiff's  counsel  that  the  communication  of  the 
governor  as  to  this  bill  is  not  the  "  first  instance  where  a  gov- 
ernor of  New  Hampshire  has  avowedly  exercised  the  veto 


79 


power  for  reasons  having  no  reference  to  the  intrinsic  merits  of 
the  proposed  measure . "  And  in  proof  of  this ,  counsel  print  in 
their  brief  a  communication  from  Governor  Currier,  in  1885, 
returning  a  house  bill  without  his  signature,  after  a  joint 
resolution  requesting  him  to  return  the  bill  for  amendment 
had  passed  the  house  and  failed  in  the  senate,  and  in  which 
he  said,  "  I  should  deem  it  an  act  of  discourtesy  to  permit  a 
bill  to  become  a  law  after  the  house  had  so  strongly  expressed 
a  desire  to  have  it  returned  for  amendment,  and  therefore, 
without  expressing  any  opinion  with  regard  to  the  merits  of 
the  bill,  I  place  it  again  in  your  hands."  If  counsel  seriously 
claim  that  this  message  was  a  disapproval  of  the  bill  and  a  re- 
turn of  it  with  objections  within  the  meaning  of  the  constitu- 
tion, they  are  not  only  wrong,  I  submit,  upon  the  plain  reading 
of  the  constitution  and  of  the  message  itself,  but  their  conten- 
tion is  wholly  met  by  the  decision  of  the  Supreme  Court  of  Vir- 
ginia, in  Wolf  v.  McCall,  76  Ya.  885,890,  where  in  a  case 
of  a  bill  returned  by  the  governor  in  response  to  a  joint 
resolution  of  the  legislature  requesting  it,  the  Court  held 
that  the  bill  became  a  law  by  the  lapse  of  the  five  days 
limited  by  the  constitution,  notwithstanding  it  was  thus 
returned  because  it  was  not  returned  with  objections  to  the 
bill,  but  merely  as  a  matter  of  courtesy  on  the  part  of  the 
governor  towards  the  legislature. 

The  communication  of  Governor  Ames,  of  Massachusetts, 
returning  the  bill  for  a  division  of  the  town  of  Beverly  in 
1887,  referred  to  in  the  brief  of  plaintiff's  counsel,  was  un- 
doubtedly the  model  upon  which  the  communication  of  the 
governor  of  New  Hampshire  returning  the  bill  under  discus- 
sion in  this  case  was  formed.  But  in  that  case  the  message 
clearly  indicated  that  the  opinion  of  the  governor  was  against 
that  of  the  legislature  upon  the  merits  of  the  bill.  He  said, 
"  If  it  [the  bill]  involved  only  the  question  of  the  division 


80 


of  the  town  of  Beverly,  I  should  hesitate  to  set  up  my  opin- 
ion against  that  of  the  legislature,"  plainly  indicating  that  his 
opinion  was  against  the  bill  upon  its  merits.  The  objection 
urged  to  that  message  was  not  that  the  governor  had  failed 
to  indicate  his  opinion  of  the  bill,  as  was  done  by  the  gov- 
ernor in  this  case,  but  that  he  had  failed  to  state  objections 
to  the  bill  itself,  and  had  only  stated  objections  to  the  con- 
duct of  those  who  had  promoted  and  opposed  its  passage. 
In  this  respect  it  was  considered  then  by  some  of  the  ablest 
members  of  the  profession  in  Massachusetts,  that  the  mes- 
sage was  not  a  valid  exercise  of  the  qualified  negative  power. 
The  question  could  not,  however,  be  practically  raised  and 
tested  in  that  case  without  more  difficulty  and  greater  delay 
than  would  attend  another  application  to  the  legislature, 
which  was  to  sit  again  within  seven  months.  The  fact,  how- 
ever, that  the  message  did  not  state  objections  to  the  bill 
itself  excited  much  comment,  and  I  think  it  is  safe  to  say 
that  no  governor  of  Massachusetts  will  again  risk  the  validity 
of  the  exercise  of  his  qualified  negative  by  a  communication 
which  states  no  objection  to  the  bill.  That  communication 
and  the  communication  of  the  governor  of  New  Hampshire 
in  the  case  under  discussion  are  the  only  communications  by 
any  council  of  revision,  or  any  president  of  the  United 
States,  or  any  governor  of  any  state,  in  which  a  bill  has 
been  returned  with  objections  which  had  nothing  to  do 
with  the  merits  of  the  bill  returned,  during  the  century 
which  has  elapsed  since  the  power  of  revision  and  qualified 
negative  of  legislative  acts  was  first  given. 

In  Birdsall  v.  Carrick,  3  Nevada,  154,  cited  by  plaintiff's 
counsel,  the  bill  was  returned  by  the  governor  with  the  state- 
ment that  upon  examination  of  it  he  found  the  enrolled  copy 
was  not  signed  by  the  secretary  of  state  as  required  by  the 
law  of  the  state,  and  that  in  his  opinion  this  was  so  fatal  that 


81 


his  approval  would  not  give  the  bill  the  authority  of  law  ; 
and  the  court  held  that  this  was  an  objection  to  the  bill  within 
the  meaning  of  the  constitution,  because  it  was  stated  as  an 
objection  to  the  bill.  The  fact  that  the  court  were  of  the 
opinion  that  it  was  not  a  valid  objection  was  of  no  conse- 
quence, because  the  court  have  no  power  to  pass  upon  the 
validity  of  the  objections  of  the  governor,  but  only  to  decide 
whether  they  are  objections  within  the  meaning  of  the  con- 
stitution. The  governor  disapproved  the  bill  because  of  an 
objection  to  it  which  he  thought  existed  upon  examination  of 
it.  He  did  not  refuse  to  examine  it,  and  he  did  not  return  it, 
as  in  this  case,  with  a  statement  of  objections  which  had 
nothing  to  do  with  it. 

Plaintiff's  counsel  quote  the  language  of  an  article  in  21 
American  Law  Eeview,  page  214,  by  Mr.  Sidney  A.  Fisher, 
who  seems  to  regard  the  function  of  the  executive  in  ap- 
proving or  disapproving  a  bill  as  precisely  the  same  which 
a  member  of  the  legislature  exercises  when  he  votes  for  or 
against  a  bill,  because  as  he  says,  and  the  plaintiff's  counsel 
say,  "The  same  word  '  approve'  is  applied  to  the  governor 
and  the  legislature  alike.  If  he  '  approve,'  and  if  approved 
by  two  thirds  of  that  house,  and  this  same  word  'approve' 
is  used  as  synonymous  with  'agree  to  pass  the  bill.'  The 
latter  phrase  is  used  with  reference  to  one  house,  and  the 
former  with  reference  to  the  other  house." 

This,  however,  is  a  mere  play  upon  words,  and  cannot 
control  the  obvious  purpose  of  the  provision  to  require  the 
executive  to  examine  and  approve  or  disapprove  legisla- 
tive acts  upon  their  merits.  As  a  matter  of  fact,  the  word 
"approve,"  although  used  in  the  Constitution  of  the  United 
States,  and  of  New  Hampshire  and  most  of  the  other  states 
as  to  one  house,  is  not  used  as  to  either  house  in  many  of  the 
state  constitutions.  In  California,  Florida,  and  Nevada,  the 


82 


language  is,  "  If  the  bills  shall  pass  both  houses,"  &c.  ;  in 
Georgia,  "  Two  thirds  of  each  house  may  pass  a  law  notwith- 
standing the  governor's  dissent ;  "  in  Iowa,  "If  it  again  pass 
both  houses,"  &c.  ;  in  Maryland,  as  to  the  first  house,  "If  it 
shall  pass,"  and  as  to  the  second,  "If  passed  by  two  thirds 
of  the  members,"  &c.  ;  and  in  Missouri,  as  to  the  first  house, 
"If  two  thirds  vote  in  the  affirmative,"  and  as  to  the  second 
house,  "If  the  bill  receive  a  majority  of  two  thirds  of  the 
votes,"  &c.  And  there  can  be  no  doubt  that  the  nature  of 
the  revisionary  power  given  the  executive  by  these  constitu- 
tions is  identical  with  that  given  by  the  Constitution  of  the 
United  States  and  the  constitutions  of  the  other  states. 

The  article  from  which  this  quotation  is  made  is  entitled, 
"  Are  the  Departments  of  Government  Independent  ?  "  It  was 
written  by  Mr.  Fisher,  as  he  says,  because  he  differs  from  the 
opinion  of  Attorney  General  Bates  advising  President  Lincoln 
in  1861  that  he  had  a  constitutional  right "  in  time  of  great  and 
dangerous  insurrection  to  arrest  and  hold  persons  known  to 
have  intercourse  with  the  insurgents,  and  to  refuse  to  obey  a 
writ  of  habeas  corpus  to  show  cause  why  he  held  them"  (10 
Opinions  Attorney  General,  p.  74),  and  to  correct  what  Mr. 
Fisher  terms  "  an  inordinate  respect  for  the  opinions  of  the 
Supreme  Court  of  the  United  States,  which  now  amounts  to 
a  superstition."  The  remarks  are  under  a  portion  of  the 
article  which  deals  with  the  question  "  whether  the  president 
may  veto  a  bill  because  he  thinks  it  unconstitutional,  although 
the  Supreme  Court  has  decided  the  same  sort  of  a  bill  to  be 
constitutional,"  and  which  Mr.  Fisher  thinks  he  may  do, 
because,  in  exercising  the  revisionary  power  with  reference 
to  the  acts  of  the  legislature,  the  president  is  exercising 
legislative  power  which  is  in  its  nature  discretionary.  But 
this  opinion,  which  is  probably  not  nearly  as  valuable  as 
that  of  the  learned  counsel  for  the  plaintiff  themselves 


83 


upon  this  point,  is  wholly  abroad  of  the  question  whether 
the  executive  can  exercise  the  revisionary  power  without 
examination  of  the  bill,  or  can  exercise  his  qualified  negative 
by  returning  the  bill  without  any  objections  to  its  pro- 
visions. I  do  not  think,  from  an  examination  of  the  article, 
that  even  Mr.  Fisher  considers  the  power  of  the  executive  to 
extend  thus  far. 


APPENDIX. 


MESSAGES  BY  NEW  HAMPSHIRE  GOVERNORS,  WITH  REFER- 
ENCE TO  BILLS  NOT  SIGNED. 

1793. 

Governor  Bartlett,  in  his  message  adjourning  the  legisla- 
ture, referred  to  three  private  bills  authorizing  certain  persons 
to  sell  lands,  in  these  words  :  "  The  short  time  I  have  had  to 
consider  them  prevents  my  being  able  to  approve  them,  or 
to  point  out  with  precision  the  objections  that  at  present  lie 
in  my  mind  against  them." 

House  Journal,  June  session,  1793,  p.  107. 

This,  although  not  a  veto  message,  indicates  very  clearly 
the  opinion  of  Governor  Bartlett  that  the  exercise  of  the 
qualified  negative  by  the  governor  required  him  to  point  out 
with  precision  the  objections  to  the  bill. 

1794. 

"  An  act  to  incorporate  the  Congregational  Society  in  Clare- 
mont,"  enacted  June  17. 

Returned  to  the  house  June  18  by  Governor  Gilman, 
with  the  objection  that  it  gave  a  religions  society  a  common 
seal,  which  was  not  necessary,  empowered  it  to  hold  a  large 
amount  of  real  estate  without  stating  the  purpose  for  which 
it  was  to  be  held,  allowed  the  society  to  tax  persons  coming 
of  age  or  moving  into  the  town,  but  did  not  make  the  society 
itself  taxable,  and  was  inconsistent  with  the  sixth  article  of 
the  bill  of  rights.  Upon  the  question  of  the  passage  of  the 


bill  notwithstanding  these  objections,  2  members  voted  in 
the  affirmative  and  106  in  the  negative. 

House  Journal,  June  session,  1794,  p.  79. 

"  An  act  in  addition  to  an  act  prescribing  the  time  and  mode 
of  redeeming  real  estate  mortgaged  or  conveyed  by  deed 
of  bargain  and  sale  with  defeasance,"  enacted  January 
14. 

Returned  by  Governor  Gilman  to  the  house  January  16, 
with  objections  that  the  provisions  of  the  bill  which  he  stated 
and  discussed  at  length  might  not  operate  justly,  and  that 
under  it  the  title  to  real  estate  would  not  be  shown  by  the 
records,  the  proper  place  to  ascertain  it.  Upon  the  question 
of  the  passage  of  the  bill  notwithstanding  these  objections, 
57  members  voted  in  the  affirmative  and  17  in  the  negative. 

'House  Journal,  November  session,  1794,  p.  140. 

1795. 

"An  act  for  taxing  lands  and  buildings  of  non-residents," 
Returned  by  Governor  Gilman  to  the  house  December 
31,  with  objections  that  the  proposed  tax  on  non-residents 
for  the  support  of  schools  would  be  inequitable,  because  the 
proportion  of  schooling  necessary  in  any  town  does  not 
depend  upon  the  quality  or  value  of  unimproved  lands  or 
buildings,  but  upon  the  number  of  persons  wanting  instruc- 
tion, and  the  non-residents  thus  taxed  would  have  no  voice 
in  the  disposal  of  the  money,  and  because  the  bill  provides 
for  an  assessment  according  to  an  appraised  value,  but  makes 
no  provision  for  such  appraisal.  Upon  the  question  of  the 
passage  of  the  bill  notwithstanding  these  objections,  25  mem- 
bers voted  in  the  negative  and  96  in  the  affirmative. 

House  Journal,  December  session,  1795,  p.  142, 


1796. 

Resolution  directing  "interest  on  all  state  notes,  bills  of  the 
the  new  emission,  and  every  other  evidence  of  debt  due 
from  this  state,  to  cease  from  and  after  July  31  next," 
passed  December  5. 

Returned  by  Governor  Gilman  December  10,  with  objec- 
tion that  the  payment  of  such  interest  was  directed  by  the 
act  of  January  16,  1782,  for  liquidating  the  public  securities, 
and  that  the  resolution  would  not  repeal  that  act.  Also  that 
the  resolution  is  an  infringemnt  on  the  engagements  hereto- 
fore made  by  the  legislature  for  the  payment  of  the  debt  of 
the  state.  Upon  the  question  of  the  passage  of  the  resolve 
notwithstanding  these  objections,  1  member  voted  in  the 
affirmative  and  108  in  the  negative. 

House  Journal,  November  session,  1796,  p.  86. 

"An  act  for  arranging  the  militia  of  this  state  into  divisions," 
enacted  December  8,  1796. 

Returned  by  Governor  Gilman  December  12,  with  objec- 
tion that  no  material  inconvenience  will  arise  if  the  militia 
are  not  thus  divided,  and  that  such  division  would  dismiss 
certain  officers  in  a  manner  heretofore  unknown.  Upon  the 
question  of  the  passage  of  the  bill  notwithstanding  these 
objections,  69  members  voted  in  the  affirmative  and  46  in 
the  negative. 

House  Journal,  November  session,  1797,  p.  93. 

"An  act  fixing  the  time  when  interest  on  state  notes,  bills 
of  new   emission,   and   other   evidences   of  debt   shall 
cease,"  enacted  December  13. 
Returned  to  the  house  by  Governor  Gilman  December  14, 

with  objection  that  the  "  bill  appears  to  be  an  infringement 


of  solemn  engagements  heretofore  made  by  the  legislature 
respecting  the  public  debts  of  the  state,"  and  referring  speci- 
fically to  legislation  upon  that  subject.  Upon  the  question 
of  the  passage  of  the  bill  notwithstanding  these  objections, 
100  members  voted  yes  and  21  voted  no. 

House  Journal,  November  session,  1796,  p.  132. 

"An  act  in  addition  to  the  laws  now  in  force    relating   to 
proprietary  matters,"  enacted  June  14. 

Returned  to  the  house  by  Governor  Gilman  June  16, 
with  objection  that  the  provisions  of  the  bill  totally  deprive 
the  proprietors  of  lands  of  a  privilege  long  had,  and  com- 
pel them  to  travel  in  many  cases  long  distances  to  trans- 
act the  necessary  business  relating  to  their  property,  and 
that  it  is  not  apparent  that  any  considerable  benefit  would 
result  to  the  inhabitants  of  the  particular  towns  therefrom. 
Upon  the  question  of  the  passage  of  the  bill  notwithstanding 
these  objections,  113  members  voted  in  the  affirmative  and 
16  in  the  negative. 

House  Journal,  June  session,  1796,  p.  81. 

1797. 

"  An  act  to  give  a  new  trial  to  Josiah  Sanborn  in  a  certain 
action  commenced  against  him  by  Samuel  Holland,  which 
had  been  tried  and  judgment  entered  therein  by  action 
of  review,  some  time  since  held  in  the  County  of  Grafton 
within  this  state,"  enacted  December  13. 

Returned  to  the  house  by  Governor  Gilman  December 
18,  with  objection  that  "The  bill  is  predicated  on  the  princi- 
ple that  the  record  of  the  verdict  of  the  jury  was  altered. 
If  this  was  the  case,  the  governor  must  presume,  until  he 
has  evidence  to  the  contrary,  that  the  court  had  sufficient 


legal  reasons  therefor ;  but  having  no  other  evidence  of  the 
case  except  what  is  contained  in  the  petition  and  bill,  he 
cannot  approve  the  bill."  Upon  question  of  passage  of  the  bill 
notwithstanding  these  objections,  97  voted  yes,  22  voted  no. 

House  Journal,  November  session,  1797,  p.  112. 

1800. 

"  An  act  to  incorporate  James  Mann  and  others  by  the  name 
of  the  Consociate  Society  in  Pembroke,"  enacted  Novem- 
ber 22. 

Returned  by  Governor  Oilman  to  the  house  November 
27,  with  objection  that  as  there  are  already  two  distinct 
religious  societies  in  Pembroke,  it  is  his  opinion  that  the 
incorporation  of  a  third  by  the  name  and  on  the  principle 
contemplated  in  the  bill  will  not  have  a  tendency  to  pro- 
mote the  general  tranquillity,  and  because  the  bill  gives  per- 
mission to  the  inhabitants  of  Bow  and  Allenstown  to  join  said 
society,  which  may  prove  injurious  to  those  towns.  Upon 
the  question  of  the  passage  of  the  bill  notwithstanding  these 
objections,  69  members  voted  in  the  affirmative  and  65  in 
the  negative. 

House  Journal,  November  session,  1800,  p.  43. 

"An  act  allowing  a  larger  per  centum  of  interest  to  pur- 
chasers of  land  sold  at  vendue  by  collectors  of  taxes  than 
is  by  law  now  established,"  enacted  December  2. 

Returned  by  Governor  Gilman  to  the  house  December  6, 
with  the  objection  that,  "While  the  law  determines  the  rate 
of  interest  in  other  cases  shall  not  exceed  a  certain  per 
centum,  there  is  no  reason  apparent  to  me  why  it  should  be 
increased  in  the  case  contemplated  in  the  bill."  Upon  the 
question  of  the  passage  of  the  bill  notwithstanding  these 


6 


objections,  108  members  voted  in  the  affirmative  and  25  in 
the  negative. 

House  Journal,  November  session,  1800,  p.  80. 

1804. 

Resolution  "expressing  the  sentiments  of  the  house  and 
senate  respecting  the  disorganizing  sentiment  inculcated 
through  the  medium  of  the  press,  and  congratulating 
their  fellow-citizens  upon  certain  measures  of  the  general 
government,  and  in  the  justice  and  wisdom  of  the  Presi- 
dent of  the  United  States,"  passed  June  13. 

Returned  to  the  senate  by  Governor  Gilman,  June  18, 
with  objection  that  if  the  resolution  referred  to  the  purchase 
of  Louisiana,  he  is  not  sufficiently  informed  as  to  the  advan- 
tages of  that  purchase  to  enable  him  to  congratulate  his 
fellow-citizens  thereon,  and  that  such  is  his  opinion  respect- 
ing some  measures  of  the  administration,  that  he  is  not 
prepared  to  express  the  unlimited  confidence  stated  by  the 
resolution.  Upon  the  question  of  the  adoption  of  the  passage 
of  the  resolution  notwithstanding  these  objections,  5  senators 
voted  in  the  affirmative  and  5  in  the  negative. 

Senate  Journal,  June  session,  1804,  p.  28. 

"  An  act  to  divide  the  state  into  districts  for  the  purpose  of 
choosing  representatives  to  Congress,"  enacted  June  13. 

Returned  to  the  senate  by  Governor  Gilman,  June  20, 
with  objection  that  in  his  opinion  the  choosing  of  represen- 
tatives to  congress,  by  the  people  of  the  state  at  large,  "  is 
most  conformable  to  the  spirit  and  letter  of  the  Constitution 
of  the  United  States,  and  therefore  no  qualified  voter  of  the 
state  should  be  debarred  from  voting  for  the  whole  number 
of  representatives  to  which  the  state  is  entitled,  unless  some 


great  inconvenience  results  therefrom."  And  that  no  incon- 
venience has  resulted  from  this  method  under  the  law  enacted 
twelve  years  before  and  intended  to  be  permanent.  Upon 
the  question  of  the  passage  of  the  bill  notwithstanding  these 
objections,  4  senators  voted  in  the  affirmative  and  6  in  the 

negative. 

Senate  Journal,  June  session,  1804,  p.  33. 

"  An  act  to  ratify  an  article  proposed  in  amendment  to  the 
Constitution  of  the  United  States,"  enacted  June  15. 

Returned  by  Governor  Gilman  to  the  house  June  20, 
with  objection  that  the  proposed  amendment  was  a  conces- 
sion by  the  smaller  states,  and  would  give  four  or  five  of  the 
larger  states  power  to  elect  the  President  and  Vice-President 
of  the  United  States,  and  that  no  sufficient  reason  existed 
for  thus  amending  the  Constitution  of  the  United  States. 
Upon  the  question  of  the  passage  of  the  bill  notwithstanding 
these  objections,  76  voted  in  the  affirmative  and  68  in  the 

negative. 

House  Journal,  June  session,  1804,  p.  61. 

"An   act  for  the   limitation  of  actions  and  for  preventing 
vexatious  suits,"  enacted  December  12. 

Returned  by  Governor  Gilrnan  December  14,  with  objec- 
tion that  the  bill  is  not  definite  in  its  provisions,  and  that  if 
carried  out  it  would  essentially  change  the  former  rights  of 
individuals  respecting  real  estate.  Upon  the  question  of  the 
passage  of  the  bill  notwithstanding  these  objections,  110 
members  voted  in  the  affirmative  and  13  in  the  negative. 

House  Journal,  November  session,  1804,  p.  103. 


8 


1805. 

"  An  act  in  amendment  of  an  act  entitled  An  act  to  incorpo- 
rate a  company  by  the  name  of  proprietors  of  Water- 
quechee  Falls  Canal,  passed  December  19, 1796,"  enacted 
June  13. 

Returned  by  Governor  Langdon  to  the  house  June  13, 
with  objection  that  the  power  of  the  court  to  regulate  the 
tolls  of  the  company  under  the  bill  could  not  be  exercised 
unless  the  company  petitioned  therefor,  although  it  should 
amount  to  more  than  twelve  per  cent  upon  the  capital. 
Upon  the  question  of  the  passage  of  the  bill  notwithstanding 
these  objections,  40  members  voted  in  the  affirmative  and  93 
in  the  negative. 

House  Journal,  June  session,  1805,  p.  45. 

1806. 

"An  act  for  taxing  banks  within  this  state,"  enacted 
June  19. 

Returned  by  Governor  Langdon  to  the  house  June  20, 
with  objections  that  the  tax  imposed  by  the  bill  was  unequal, 
unreasonable,  and  unjust,  and  against  the  spirit  and  letter 
of  the  constitution.  Upon  the  question  of  the  passage  of 
the  bill  notwithstanding  these  objections,  90  members  voted 
in  the  affirmative  and  56  in  the  negative. 

House  Journal,  June  session,  1806,  p.  77. 

1807. 

"  An  act  to  constitute  a  company  of  cavalry  to  be  annexed  to 
the  18th  regiment,"  enacted  June  16. 

Returned  by  Governor  Langdon  to  the  house  June  17, 
with  the  objection  that  a  good  company  of  cavalry  already 


belongs  to  said  regiment,  and  the  annexing  of  another  would 
be  injurious  and  expensive.  Upon  the  question  of  the  pas- 
sage of  the  bill  notwithstanding  these  objections,  16  members 
voted  in  the  affirmative  and  108  in  the  negative. 

House  Journal,  June  session,  1807,  p.  76. 

w  An  act  to  constitute  two  companies  of  cavalry  in  the  6th 
regiment,"  enacted  June  16. 

Returned  by  Governor  Langdon  to  the  house  June  17, 
with  the  objection  that  more  than  one  company  of  cavalry  to 
a  regiment  would  be  injurious  and  expensive.  On  the  ques- 
tion of  the  passage  of  the  bill  notwithstanding  these  objec- 
tions, 15  members  voted  in  the  affirmative  and  108  in  the 

negative. 

House  Journal,  June  session,  1807,  p.  83. 

1808. 

"An  act  empowering  justices  of  the  peace  to  deputize  persons 
to  serve  precepts  in  certain  cases,"  enacted  December  22. 

Returned  by  Governor  Langdon  to  the  house  December 
22,  with  the  objection  that  the  laws  now  in  force  for  the 
service  of  precepts  in  all  cases  are  a  greater  security  to  citi- 
zens than  is  provided  in  this  bill.  On  the  question  of  the 
passage  of  the  bill  notwithstanding  this  objection,  25  mem- 
bers voted  in  the  affirmative  and  76  in  the  negative. 

House  Journal,  November  session,  1808,  p.  122. 

,       1811. 

"  An  act  to  incorporate  John  L.  Sullivan  and  others  by  the 
name  and  style  of  the  Merrimack  Boating  Company," 
enacted  June  20. 
Returned  to  the  house  by  Governor  Langdon  June  21, 


10 


with  the  objection  that  "  there  has  not  been  a  day  of  hearing 
had  on  the  subject  matter  of  the  bill,  and  that  at  the  close  of 
the  session  there  is  not  time  to  fully  consider  the  business." 
Upon  the  question  of  the  passage  of  the  bill  notwithstanding 
this  objection,  86  members  voted  in  the  affirmative  and  68  in 
the  negative. 

House  Journal,  June  session,  1811,  p.  121. 


1812. 

"  An  act  to  incorporate  John  L.  Sullivan  and  others  by  the 
name  and  style  of  the  Merrimack  Boating  Company," 
enacted  June  — . 

Returned  by  Governor  Plummer  to  the  house  June  16, 
with  objections  that  it  does  not  appear  that  public  necessity 
or  interest  requires  such  a  corporation  to  be  created ;  that 
the  words  of  description  of  the  extent  of  the  privilege 
granted  by  the  bill  are  uncertain,  and  that  the  corporation 
may  restrain  citizens  from  the  use  of  the  river,  or  impose 
such  tribute  as  it  pleases  for  such  use.  Also,  that  the  bill 
is  so  drawn  that  it  may  give  the  exclusive  right  to  the 
waters  of  the  river  ;  that  there  is  no  provision  subjecting  the 
property  of  the  members  of  the  corporation  to  the  payment 
of  their  individual  and  private  debts,  and  nothing  requiring 
the  clerk  to  be  sworn ;  and  that  the  whole  property  of  the 
stockholders  in  the  corporation  is  declared  to  be  personal 
estate,  to  be  transferred  only  by  assignment  of  stockholders. 
Upon  the  question  of  the  passage  of  the  bill  notwithstanding 
the  objections,  no  members  voted  in  the  affirmative  and  140 
in  the  negative. 

House  Journal,  June  session,  1812,  p.  89. 


11 


Resolution  empowering  the  governor  to  "  distribute  as  he 
may  think  proper  among  the  militia  when  called  into 
active  service,  the  arms  belonging  to  the  state  that  are 
now  in  the  hands  of  the  commissary  general,"  passed 
November  — 

Returned  by  Governor  Plummer  November  26,  with  the 
objection  that  by  the  resolution,  the  militia  securing  arms 
under  it  may  hold  them  as  their  own  property,  no  authority 
being  given  the  governor  to  require  them  to  be  returned. 
Upon  the  question  of  the  passage  of  the  resolution  notwith- 
standing this  objection,  no  members  voted  in  the  affirmative 
and  126  voted  in  the  negative. 

House  Journal,  November  session,  1812,  p.  46. 

Resolution  granting  to  "John  Goddard,  Jeremiah  Mason,  and 
Daniel  Webster  for  their  services  in  revising,  collecting, 
and  reporting  the  bills  for  the  criminal  code  and  regu- 
lating the  state  prison,  ninety  dollars,  and  that  they 
should  also  have  and  retain  the  laws  which  were  pro- 
cured for  them  by  the  late  governor  for  their  infor- 
mation in  performing  the  duties  assigned  to  them," 
passed  December  16. 

Returned  by  Governor  Plummer  December  17,  with  the 
objections  that  "It  appears  that  the  gentlemen  named  re- 
ceived law  books  or  property  of  the  state  as  follows : 
[enumerating  the  books],  which  books,  to  say  nothing  of 
the  ninety  dollars,  would  sell  for  more  than  the  services  of 
the  commission  at  a  fair  price  are  worth.  These  books 
should  not  be  disposed  of  at  any  price,  being  for  the  use  of 
government  and  people."  Upon  the  question  of  the  passage 
of  the  resolution  notwithstanding  these  objections,  143  voted 
in  the  negative  and  none  in  the  affirmative. 

House  Journal,  November  session,  1812,  p.  143. 


12 


"Resolution  for  the  relief  of  Jeremiah  Gernsh  and  Daniel 
Webster  from  a  contract  for  which  it  is  stated  they  were 
sureties  for  the  late  Timothy  Dix,  Jr.,  for  the  payment 
of  a  certain  sum  of  money  for  a  township  of  unimproved 
land  that  he  purchased  of  the  state  in  the  year  1805," 
passed  June  21. 

Returned  to  the  house  by  Gov.  William  Plummer,  June 
25,  with  objections  that  "It  is  not  represented  even  that  the 
original  bargain  was  founded  either  in  mistake  or  misrepre- 
sentation. .  .  .  Since  the  death  of  said  Dix  they  have  not 
been  able,  by  entering  upon  said  wild,  uncultivated  lands,  to 
take  such  actual  possession  as  to  foreclose  the  right  of  re- 
demption and  prevent  the  heirs  at  law  or  creditors  of  said 
Dix  from  redeeming  the  mortgage ;  and  should  individuals 
acquire  title  to  the  lands  under  cellectors'  deeds,  or  as  set- 
tlers, the  state  might  be  obliged  to  bring  suit  for  breach  of 
covenant  in  the  deed  contemplated  to  be  given  by  said  Ger- 
rish  and  Webster,  and  if  they  should  prove  unable  to  respond 
to  the  damages  awarded  in  such  suit,  the  state  would  be 
without  remedy."  On  the  question  of  the  passage  of  the 
resolve  notwithstanding  the  objections,  8  members  voted  in 
affirmative  and  145  in  the  negative. 

House  Journal,  June  session,  1816,  p.  180. 

1816. 

"  An  act  to  incorporate  sundry  persons  by  the  name  of  the 
Farmer's  Bank,"  enacted  June  21,  1816. 

Returned  by  Governor  Plummer  to  the  house  June  27, 
1816,  with  objections  that  the  authority  to  issue  bills  of  cred- 
it ought  not  to  be  granted  to  a  corporation ;  that  the  public 
interests  did  not  require  the  establishment  of  another  bank, 


13 


and  also  that  the  bill  did  not  contain  any  provision  requiring 
the  bank  to  pay  anything  to  the  state  for  the  privilege  of  trans- 
acting business,  or  requiring  the  bank  to  lend  money  to  the 
state,  if  the  exigencies  of  the  treasury  required,  and  that  it 
did  not  contain  any  provision  subjecting  its  officers  to  penalty 
for  neglecting  to  pay  bills  when  presented,  and  did  not  re- 
serve any  authority  to  the  legislature,  in  case  of  such  refusal, 
to  repeal  the  act  of  incorporation.  And  further,  because  there 
was  no  provision  in  the  bill  to  secure  the  payment  of  out- 
standing bills  and  debts  at  any  time  when  the  charter  might 
be  forfeited  or  terminated,  or  the  corporation  be  dissolved  by 
limitation.  Upon  the  question  of  the  passage  of  the  bill  not- 
withstanding the  objections,  5  members  voted  in  the  affirm- 
ative and  121  in  the  negative. 

House  Journal,  June  session,  1816,  p.  223. 

"  An  act  for  the  further  suppression  of  vice  and  immorality," 
enacted  June  25,  1816. 

Returned  by  Governor  Plummer  to  the  house  June  27, 
1816,  with  objections  that  there  was  no  public  necessity  for 
delegating  further  power  to  town  corporations  to  exercise 
authority  upon  the  subject  contemplated  by  the  bill ;  that  the 
description  of  offences  enumerated  in  the  bill  was  too  un- 
certain to  subject  citizens  to  arrest  and  imprisonment  at  the 
will  of  a  single  police  officer  ;  that  the  proceedings  authorized 
were  unnecessary  and  might  be  abitrary  and  exercised  from 
bad  motives.  Upon  the  question  of  the  passage  of  the  bill 
notwithstanding  the  objections,  2  members  voted  in  the 
affirmative  and  86  in  the  negative. 

House  Journal,  June  session,  1816,  p.  227. 


14 


"An  act  in  addition  to  an  act  entitled  'An  act  to  incorpo- 
rate sundry  persons  by  the  name  of  the  President, 
directors,  and  company  of  the  Cheshire  bank,'  passed 
December  24,  1803  ;  "  enacted  December  14,  1816. 

Returned  by  Governor  Plummer  to  the  house  December 
16,  1816,  with  objections  that  the  bill  contained  no  provision 
requiring  the  corporation  to  pay  any  equivalent  for  the  grant 
of  the  right  to  make  profits  by  banking  into  the  state 
treasury ;  also  that  the  bill  authorized  a  private  bank  to 
make  a  separate  branch  not  only  of  deposit,  but  for  transact- 
ing all  banking  business,  which  was  contrary  to  the  policy 
of  the  state,  and  because  it  was  questionable  whether,  if  the 
branch  bank,  authorized  by  the  bill  to  be  established  at  Wai- 
pole  should  refuse  to  redeem  its  bills,  the  Cheshire  bank  at 
Keene  would  be  holden  to  pay  them.  Upon  the  question  of 
the  passage  of  the  bill  notwithstanding  these  objections, 
115  members  voted  in  the  affirmative  and  63  in  the  negative. 

House  Journal,  November  session,  1816,  p.  180. 

Joint  resolve  declaring  it  "inexpedient  to  amend  the  Con- 
stitution of  the  United  States  upon  the  subject  of  elect- 
ing representatives  to  the  Congress  of  the  United  States 
and  the  appointment  of  electors  of  President  and  Vice 
President  of  the  United  States,  as  proposed  by  the 
Legislature  of  North  Carolina." 

Returned  to  the  house  December  25  by  Governor  Plummer 
"for  reconsideration,"  with  the  objection  that  inasmuch  as 
the  object  of  the  amendment  proposed  by  the  Legislature  of 
North  Carolina  was  to  make  provision  for  the  division  of  each 
state  into  equal  districts  for  the  choice  of  representatives  and 
electors,  the  principle  of  it  was  "  correct  and  consonant  with 
the  principle  established  by  the  New  Hampshire  State  Con- 


15 


stitution  in  the  choice  by  districts  of  senators,  and  therefore 
he  could  not  approve  the  resolve  declaring  such  an  amend- 
ment inexpedient. 

At  the  same  time  the  governor  returned  a  similar  resolve 
declaring  it  inexpedient  to  amend  the  constitution  upon  the 
same  subject,  as  proposed  by  the  Legislature  of  Massachu- 
setts, stating  that  the  same  objections  applied  to  the  approval 
of  that  resolve  as  to  the  one  in  regard  to  the  amendment 
proposed  by  the  Legislature  of  North  Carolina.  No  vote 
appears  by  the  journal  to  have  been  taken  upon  the  passage 
of  these  resolves  notwithstanding  the  governor's  objections. 

House  Jouunal,  November  session,  1816,  pp.  253,  254. 


1817. 

Resolution  for  the  "  relief  of  Jeremiah  Gerrish  and  Daniel 
Webster,"  passed  June  23. 

Returned  to  the  house  by  Governor  Plummer  June  24, 
with  the  objections  that  the  deed  of  one  Dix  to  Webster  and 
Gerrish,  mentioned  in  the  resolution,  was  not  absolute  but 
conditional,  and  there  was  no  evidence  that  the  heirs  of  Dix 
had  been  foreclosed  of  their  right  to  redeem,  nor  whether 
Dix  was  ever  in  possession  of  the  property,  and  no  informa- 
tion as  to  the  value  of  the  property.  Also  that  the  resolu- 
tion does  not  fix  any  time  within  which  the  deed  from  Gerrish 
and  Webster  to  the  state  is  to  be  executed  and  the  balance 
of  money  paid  to  the  treasurer.  Upon  the  question  of  the 
passage  of  the  resolution  notwithstanding  these  objections, 
4  members  voted  in  the  affirmative  and  143  in  the  negative. 

House  Journal,  June  session,  1817,  p.  183. 


16 


1818. 

"An  act  to  authorize  and  direct  the  clerk  of  the  Court  of 
Common  Pleas  of  the  County  of  Rockingham  to  issue 
an  execution  to  be  substituted  in  place  of  one  already 
issued,  but  lost  or  destroyed,"  passed  June  19. 

Returned  by  Governor  Plummer  June  25,  with  objec- 
tions — 

First.  That  there  was  no  legal  evidence  that  such  a 
judgment  was  ever  rendered,  or  such  an  execution  ever 
issued. 

Second.  That  the  petition  upon  which  the  resolution  is 
based  accuses  one  Tuckerman  of  a  criminal  act,  and  he  does 
not  appear  to  have  had  opportunity  to  appear  before  the 
legislature  and  deny  it. 

Third.  That  it  does  not  appear  that  notice  has  been  given 
to  Tuckerman  and  others  interested  to  present  their  objec- 
tions to  the  bill. 

Fourth.  That  to  order  the  clerk  to  antedate  an  alias  exe- 
cution and  make  an  entry  of  issuing  it  as  of  the  same  time  as 
of  the  former  execution,  is  contrary  to  the  fact. 

Fifth.  Requiring  the  deputy  sheriff  to  antedate  his  return, 
grants  to  him  an  authority  with  which  our  law  has  not  in- 
vested deputy  sheriffs. 

Sixth.  The  plaintiff  might  have  obtained  an  alias  execution 
without  applying  to  the  legislature,  and  it  is  doubtful  whether 
the  proceedings  under  the  bill  would  ensure  a  title  to  him. 
Upon  the  question  of  the  passage  of  the  bill  notwithstanding 
these  objection,  5  members  voted  in  the  affirmative  and  112 
in  the  negative. 

House  Journal,  June  session,  1818,  p.  269. 


17 


"An  act  in  addition  to  an  act  entitled  'An  act  for  the  equal 

distribution  of  insolvent  estates  ; ' "  enacted  June  — 
Returned  to  the  house  by  Governor  Plummer  June  26, 
with  objections  that  the  bill  is  useless,  because  the  present 
law  covers  the  subject ;  that  the  bill  would  unsettle  a  long- 
established  practice  under  the  existing  laws,  and  "  might  foster 
a  spirit  of  litigation  respecting  former  settlements  injurious 
to  the  peace  of  society."  Also  that  the  provisions  of  the  bill 
are  ambiguous.  Upon  the  question  of  the  passage  of  the  bill 
notwithstanding  these  objections,  120  members  voted  in  the 
affirmative  and  31  in  the  negative. 

House  Journal,  June  session,  1818,  p.  284. 

"  An  act  to  amend  an  act  to  incorporate  the  inhabitants  of  the 
northerly  part  of  Gilmantown  into  a  separate  township 
with  all  the  privileges  and  immunities  of  other  towns 
in  this  state,"  passed  June  24. 

Returned  to  the  house  by  Governor  Plummer  June  26, 
with  the  objections  that  the  bill,  if  it  has  any  validity,  will 
impair  or  destroy  rights  now  vested  in  the  town  of  Gilman- 
town, against  their  will  and  without  their  knowledge.  Upon 
the  question  of  the  passage  of  the  bill,  notwithstanding  this 
objection,  6  members  voted  in  the  affirmative  and  134  in  the 

negative. 

House  Journal,  June  session,  1818,  p.  290. 

"An  act  to  incorporate  the  Portsmouth  Provident  Society," 

enacted  June  24. 

Returned  by  Governor  Plummer  to  the  house  June  29, 
with  objections  that  the  bill  contains  no  definite  object  for 
which  the  corporation  is  to  be  established ;  that  it  is  to  hold 
$6000  worth  of  real  estate  which  will  not  be  subject  to  taxa- 
tion, because  "corporate  property  cannot  be  taxed  unless  in 


18 


pursuance  of  statute,  and  members  of  the  corporation  may 
thus  avoid  taxation."  That  the  bill  vests  extensive  authority 
for  private  and  indefinite  purposes  in  twenty  men,  seven  of 
whom  may  admit  or  expel  other  members,  and  as  it  is  a  grant 
to  individuals  for  twenty  years,  it  is  doubtful  if  future  legis- 
lation can  constitutionally  repeal  the  grant,  and  "  whatever 
evils  follow,  great  caution  should  be  used  in  enacting  irre- 
pealable  laws."  On  the  question  of  the  passage  of  the  bill 
notwithstanding  these  objections,  7  members  voted  in  the 
affirmative  and  106  in  the  negative. 

House  Journal,  June  session,  1818,  p.  312. 

In  his  message  adjourning  the  legislature  Governor  Plum- 
mer,  after  naming  the  bills  which  he  had  returned  with  ob- 
jections, mentioned  "An  act  in  addition  to  an  act  entitled  'An 
act  to  establish  the  rates  at  which  polls  and  ratable  estates 
shall  be  valued  in  making  and  assessing  direct  taxes,  made 
and  passed  December  16, 1812,'  which  had  not  been  approved 

or  returned." 

House  Journal,  June  session,  p.  338. 

1819. 

Resolution  "  imposing  a  penalty  upon  the  commanding  officers 
of  the  several  regiments  of  the  state  who  shall  for  a  term 
of  six  months  fail  to  make  a  return  to  the  commissary 
general  of  the  number  of  infantry  in  each  town  compos- 
ing such  regiments,"  passed  June  29. 
Returned  by  Governor  Bell  July  2,  with  the  objections 
that  an  action  cannot  be  maintained  for  the  recovery  of  a 
penalty  imposed  by  a  resolution. 

Upon  the  question  of  the  passage  of  the  resolution  not- 
withstanding this  objection,  the  resolution  failed  of  a  passage, 
House  Journal,  June  session,  1819,  p.  368. 


19 


1820. 

Resolution  "  allowing  to  James  Dean  $500,  to  Thomas  C. 
Searl  $300,  and  to  Nathaniel  H.  Carter  $184,  in  full  of 
their  salaries  as  professors  of  Dartmouth  University," 
passed  December  14. 

Returned  by  Governor  Bell  Dec.  18,  with  the  objection  that 
he  finds  nothing  in  the  acts  of  the  legislature  respecting  Dart- 
mouth University  creating  any  obligation  on  the  part  of  the 
state  to  pay  the  salaries  of  the  officers  of  that  institution,  and 
and  no  evidence  from  the  journals  of  the  legislature,  or  the 
acts  themselves,  or  from  any  source,  that  it  was  the  intention 
of  the  legislature  to  guarantee  such  payment ;  that  there  is 
no  evidence  that  the  debts  are  due  from  the  state,  and  if  they 
are  not  it  is  not  wise  to  impose  the  burden  of  mere  donations 
upon  the  citizens  of  the  state  in  this  time  of  pressure  and 
embarrassment.  Upon  the  question  of  the  passage  of  the 
resolution  notwithstanding  these  objections,  98  voted  in  the 
affirmative  and  78  in  the  negative. 

House  Journal,  November  session,  1820,  p.  292. 

Resolution  "  allowing  Eliza  B.  Woodward,  executrix  of  the 
last  will  of  William  H.  Woodward,  deceased,  $471.15 
in  full  for  the  services  of  William  H.  Woodward,  and  in 
full  for  moneys  by  him  advanced  as  secretary  and  treas- 
urer of  Dartmouth  University,  "  passed  December  18. 

Returned  to  the  house  by  Governor  Bell,  with  the  same 
objections  returned  with  the  resolution  passed  December  14 
with  reference  to  the  salaries  of  the  officers  of  Dartmouth 
University.  Upon  the  question  of  the  passage  of  the  resolu- 
tion notwithstanding  these  objections,  72  members  voted  in 
the  affirmative  and  77  in  the  negative. 

House  Journal,  November  session,  1820,  p.  345. 


20 


"  An  act  to  incorporate  Thomas  S.  Bowles  and  others  into  a 
charitable  society  by  the  name  of  Pythagoras  Lodge, 
No.  33,"  enacted  June  19. 

Returned  by  Governor  Bell  to  the  house  June  21,  with  the 
objection  that  the  bill  creates  a  private  corporation  with  the 
right  to  acquire  and  hold  real  and  personal  estate  without  lim- 
itation of  amount,  whereby  the  corporation  could  accumulate 
large  sums  and  "  appropriate  them  to  purposes  inconsistent 
with  the  public  good,  and  not  in  the  power  of  the  legislature 
to  provide  an  adequate  remedy  against."  Upon  the  question 
of  the  passage  of  the  bill  notwithstanding  these  objections, 
1  member  voted  in  the  affirmative  and  144  in  the  negative. 
House  Journal,  June  session,  1820,  p.  240. 

1836. 

"  An  act  to  establish  a  corporation  by  the  name  of  the  Franklin 

Manufacturing  Company,"  enacted  June  16. 
Sent  by  Governor  Badger  to  the  house  June  19,  with  the 
objection  that  no  definite  place  of  location  is  named  in  the 
bill,  and  it  is  "questionable  how  far  the  corporation  may  be 
amenable  to  the  laws  and  judicial  tribunals  of  this  state." 
These  objections  being  read,  the  bill  was  laid  upon  the  table, 
and  subsequently  returned  to  the  governor  with  a  resolution 
informing  him  that  it  did  not  originate  in  the  house. 
House  Journal,  June  session,  1835,  p.  111. 

1837. 

Resolve  "  to  pay  $200  to  the  selectmen  of  the  town  of  Hamp- 
ton for  the  benefit  of  Joseph  L.  Shaw,  late  a  convict  in 
the  state  prison,  whose  legs  have  been  amputated  by 
reason  of  their  having  been  frozen  while  in  said  prison." 
Returned  by  Governor  Hill  July  7,  1837,  with  the  objec- 


21 


tion  that  the  expense  of  the  maintenance  of  Shaw  should  be 
borne  by  the  town  of  Hampton,  and  that  for  the  state  to 
contribute  thereto  would  establish  a  dangerous  precedent 
and  consume  much  time  of  the  legislature,  and  incur  large 
additional  state  expense.  Upon  the  question  of  the  passage 
of  the  resolve  notwithstanding  the  objections,  26  members 
voted  in  the  affirmative  and  104  in  the  negative. 

House  Journal,  June  session,  1837,  p.  263. 

1844. 

"  An  act  to  incorporate  the  Trustees  of  Donations  to  the 
Protestant  Episcopal  Church." 

Returned  by  Governor  Steele  to  the  house  December  24, 
1844,  with  objections  that  the  bill  created  "  a  self- perpetuating 
board  of  trust  beyond  the  control  of  the  societies  and  churches 
for  whose  benefit  the  act  was  intended ; "  also  that  all  the 
power  which  ought  to  be  given  as  to  the  matter  covered  by 
the  bill  was  already  given  by  the  general  law,  and  if  not,  the 
defect  should  be  remedied  by  an  amendment  of  the  general 
law  rather  than  by  special  legislation.  The  message  argues 
at  length  the  dangers  of  special  legislation  as  to  matters 
which  can  be  covered  by  a  general  law.  Upon  the  question 
of  the  passage  of  the  bill  notwithstanding  the  objections,  29 
members  voted  in  the  affirmative,  150  in  the  negative. 

House  Journal,  November  session,  1844,  p.  270. 

"  An  act  in  addition  to  an  act  to  incorporate  the  Proprietors 
of  Dalton  Bridge." 

Returned  by  Governor  Steele  November  6,  1844,  to  the 
house,  with  objections  that  the  bill  contained  no  provision 
making  the  stockholders  liable  in  their  private  capacity  for 
debts  and  damages,  nor  any  provision  reserving  to  the  legisla- 


22 


ture  the  right  to  alter,  amend,  or  abolish  any  of  its  provisions. 
The  message  concludes  with  these  words  :  "  For  these  reasons 
I  deem  it  incumbent  on  me  to  return  said  bill  to  the  house 
of  representatives,  whence  it  originated,  and  respectfully 
request  their  attention  and  reconsideration  to  the  whole 
matter."  Upon  the  question  of  the  passage  of  the  bill  not- 
withstanding the  objections,  4  members  voted  in  the  affirma- 
tive, 189  in  the  negative. 

House  Journal,  November  session,  1844,  pp.  128,  131. 

1845. 

Governor  Steele,  in  adjourning  the  legislature  at  its  request, 
said  that  the  late  hour  at  which  ff  an  act  in  addition  to  and  in 
amendment  of  the  laws  of  this  state  "  was  received  by  him, 
effectually  prevented  "  that  consideration  which  the  impor- 
tance of  the  bill  demanded,"  and  that,  believing  that  its  pas- 
sage would  destroy  that  which  it  was  intended  to  meet,  he 
was  unable  to  give  it  his  signature,  and  had  not  time  to 
return  it  with  his  objections  thereto,  therefore  he  neither 
signed  it  nor  returned  it. 

House  Journal,  June  session,  1845,  p.  336. 

1854. 

w  An  act  in  amendment  of  an  act  entitled  '  An  act  to  establish 

the  city  of  Concord.' " 

Returned  to  the  house  July  12,  1854,  by  Governor  Baker, 
with  the  objection  that  "  the  legislature  has  no  constitutional 
right  to  prohibit  the  use  of  all  intoxicating  drinks,"  and 
therefore  no  constitutional  right  to  delegate  such  power  to 
municipal  authorities,  which  the  bill  attempts  to  do.  Upon 
the  question  of  the  passage  of  the  bill  notwithstanding,  5 
members  voted  in  the  affirmative  and  251  in  the  negative. 
House  Journal,  June  session,  1854,  pp.  430,  434. 


23 


"  An  act  to  establish  the  city  of  Dover." 

Returned  by  Governor  Baker  to  the  house  July  14,  with 
the  same  objections  stated  at  length  as  those  stated  to  the 
bill  to  amend  the  charter  of  the  city  of  Concord.  Upon  the 
question  of  the  passage  of  the  bill  notwithstanding,  1 
member  voted  in  the  affirmative  and  163  in  the  negative. 

House  Journal,  June  session,  1854,  pp.  495,  498. 

Resolution  relative  to  the  ventilation  of  the  .hall  of  the 
house  of  representatives. 

Returned  to  the  house  by  Governor  Baker  July  13,  with 
the  objection  that  the  provision  of  the  resolution  authorizing 
the  secretary  of  state  to  draw  on  the  treasurer  for  the 
expense  was  contrary  to  the  fifty-sixth  article  of  the  con- 
stitution, providing  that  money  should  be  drawn  by  the 
warrant  of  the  governor.  Upon  the  question  of  the  passage 
of  the  resolve  notwithstanding,  there  were  no  votes  in  the 
affirmative  and  182  in  the  negative. 

House  Journal,  June  session,  1854,  pp.  492,  495. 

1856. 

"  An  act  to  incorporate  the  Belknap  Aqueduct  Company," 
and  "  An  act  to  incorporate  the  Manchester  Aqueduct," 

were  stated  by  Governor  Metcalf,  in  his  message  adjourn- 
ing the  legislature  at  its  request,  to  have  been  held  by  him, 
because  the  late  hour  at  which  they  were  received,  and  the 
pressure  of  other  business,  had  prevented  him  from  return- 
ing them  with  his  objections  in  season  for  any  action  upon 

them. 

House  Journal,  June  session,  1856,  p.  484. 


24 


1864. 

"  An  act  for  the  relief  of  the  creditors  of  the  Sullivan  Rail- 
road Company." 

Returned  by  Governor  Gilmore  July  1, 1864,  to  the  house, 
with  objections  — 

First.  That  the  public  interests  would  not  permit  the 
unlimited  right  of  sale  of  one  railroad  corporation  to  an- 
other. 

Second.  That  the  bill  granted  an  unlimited  right  to  the 
trustees  of  the  bonds  to  sell  the  mortgaged  property  so  that 
the  minority  of  the  bondholders  might  be  deprived  of  their 
security. 

Third.  That  the  bill  did  not  clearly  retain  the  right  of 
amendment,  alteration,  and  repeal  of  the  charter  of  the  new 
corporation  constituted  thereby,  July  14,  1864. 

Upon  the  passage  of  the  bill  notwithstanding,  229  mem- 
bers voted  in  the  affirmative  and  59  in  the  negative,  and  the 
bill  passed. 

House  Journal,  June  session,  1864,  p.  224. 

"An  act  in  relation  to  the  Carroll  County  Bank." 

Returned  by  Governor  Gilmore  to  the  house  August  23, 
with  objections  that  it  did  not  provide  that  the  stockholders 
should  have  an  opportunity  to  subscribe  for  the  authorized 
increase  in  proportion  to  their  respective  holdings,  or  that 
any  notice  should  be  given  to  them  of  such  increase.  Upon 
the  question  of  the  passage  of  the  bill  notwithstanding  the 
objections,  the  motion  was  made  and  put  that  the  bill  be 
indefinitely  postponed,  upon  which  172  voted  in  the  affirma- 
tive and  24  in  the  negative. 

House  Journal,  Special  session,  1864,  pp.  193,  200, 


25 


w  An  act  to  enable  the  qualified  voters  of  this  state  engaged 
in  the  military  service  of  the  country  to  vote  for  electors 
of  President  and  Vice  President  of  the  United  States, 
and  for  representatives  in  congress." 

Returned  by  Governor  Gilmore  to  the  house  August  24, 
1864,  during  the  call  of  the  yeas  and  nays  upon  a  motion  to 
adjourn,  which  was  carried,  and  first  read  to  the  house  as  a 
portion  of  a  message  received  from  the  governor  on  the  26th 
of  August.  This  message,  which  was  subsequently  held  by 
the  court  not  to  have  been  received  within  the  time  required 
by  the  constitution,  stated  that  the  act  would,  in  the  opinion 
of  the  governor,  be  unconstitutional. 

On  the  26th  of  August  the  house  passed  a  resolution  de- 
claring that  the  act  had  become  a  law  without  the  approval 
of  the  governor,  and  the  justices  of  the  Supreme  Court  sub- 
sequently held  this  to  be  the  case. 

House  Journal,  Special  session,  1864,  pp.  204,  216,  219. 
Opinion  of  Justices,  45  N.H.  607. 

Resolution  recommending  the  governor  "to  apply  to  banks 
and  moneyed  institutions  of  the  state  for  a  temporary 
loan." 

Returned  to  the  house  by  Governor  Gilmore  August  29, 
with  objections,  first,  that  it  was  not  of  a  nature  to  require 
his  signature  ;  second,  that  it  opened  no  resources  of  supply 
other  than  those  which  had  been  already  employed ;  third, 
that  the  scheme  of  obtaining  money  in  the  manner  proposed 
was  impracticable  and  unwise.  This  message  was  referred 
to  the  committee  on  finance,  who  reported  a  resolution  that 
the  further  consideration  of  the  subject  be  indefinitely  post- 
poned, which  was  adopted. 

House  Journal,  Special  session,  1864,  pp.  223,  241,  247. 


26 


1865. 

"An  act  entitled  'An  act  in  amendment  of  chapter  68,  Re- 
vised Statutes,  relating  to  the  maintenance  of  bastard 
children.'" 

Returned  to  the  house  by  Governor  Smyth  June  30, 1865, 
with  the  objection  that  the  act  confers  authority  to  make 
complaint,  &c.,  not  upon  the  board  of  county  commissioners, 
but  upon  a  minority  of  the  commissioners,  because  by  the 
distinct  provisions  of  the  bill  the  power  is  conferred  upon 
any  individual  member  thereof  who  may  make  complaint, 
although  both  his  colleagues  object.  Upon  the  passage  of 
the  bill  notwithstanding  the  objections,  6  members  voted  in 
the  affirmative  and  132  in  the  negative. 

House  Journal,  June  session,  1865,  p.  251. 

1868. 

w  An  act  irf  amendment  of  chapter  213,  section  2,  of  the  Gen- 
eral Statutes,  abolishing  the  usury  laws." 

Returned  to  the  house  July  3,  1868,  by  Governor  Harri- 
man,  with  objections  that  the  act  was  not  called  for  by 
public  necessity,  and  would  produce  an  additional  burden 
upon  the  debtors  of  the  state,  especially  upon  the  towns, 
and  that  the  "  granting  to  capital  of  a  license  to  take  any 
terms  which  the  necessitous  might  be  compelled  to  offer  was 
not  called  for,  but  would  be  inexpedient  and  ill-advised." 
Upon  the  question  of  the  passage  of  the  bill  notwithstanding 
the  objections,  97  members  voted  in  the  affirmative  and  173 
in  the  negative. 

House  Journal,  June  session,  1868,  p.  264. 


27 


1877. 
"  An  act  to  incorporate  the  Magdalena  River  Railroad." 

Returned  by  Governor  Prescott  to  the  house  July  12, 
1877,  with  objections  that  the  bill  authorized  the  construction 
and  operation  of  a  railroad  in  South  America,  and  that  the 
corporators  named  were  mainly  non-residents  of  New  Hamp- 
shire, and  that  the  bill  might  be  used  for  improper  purposes, 
and  was  not  required  by  any  interests  or  persons  in  New 
Hampshire.  The  question  does  not  appear  to  have  ever  been 
stated  upon  the  passage  of  this  bill  notwithstanding  the  objec- 
tions. 

House  Journal,  1877,  p.  447. 

1883. 

"  An  act  to  establish  a  board  of  railroad  commissioners." 
Returned  by  Governor  Hale  to  the  house  September  12, 
1883,  with  objections  that  the  method  of  electing  commis- 
sioners by  the  joint  convention  of  the  houses  provided  by 
the  bill  was  unwise  and  an  injurious  method ;  that  an  officer 
to  be  commissioned  by  the  governor  should  not  be  elected 
by  the  legislature,  and  that  the  provision  of  the  bill  provid- 
ing that  one  commissioner  must  be  learned  in  the  law,  and 
another,  a  civil  engineer  learned  and  skilled  in  his  profession, 
was  a  violation  of  article  11  of  the  bill  of  rights  declaring 
that  "  every  inhabitant  of  the  state  having  proper  qualifica- 
tions has  equal  right  to  elect  and  be  elected  into  office." 
This  bill  was  referred  to  the  judiciary  committee,  who  re- 
ported on  September  14  that  it  was  not  expedient  to  pass 
the  bill  notwithstanding  the  objections  of  the  governor,  and 
reported  the  bill  modified  to  conform  to  the  suggestions  of 
the  governor's  message.  Upon  the  question  of  the  passage 
of  the  bill  notwithstanding  the  objections,  16  members  voted 


28 


in  the  affirmative  and  252  in  the  negative.  The  bill  reported 
by  the  judiciary  committee  was  then  passed. 

House  Journal,  June  session,  1883,  pp.  1110,  1125. 

1885. 

"  An  act  to  prohibit  shooting  and  trapping  in  private 
grounds," 

Was  returned  by  Governor  Currier  to  the  house  August  14, 
with  the  following  message  :  "  I  herewith  return  without  my 
signature  house  bill  No.  20,  entitled  'An  act  to  prohibit  shoot- 
ing in  private  grounds.'  I  should  deem  it  an  act  of  dis- 
courtesy to  permit  a  bill  to  become  a  law  after  the  house  has 
so  strongly  expressed  a  desire  to  have  it  returned  for  the 
purpose  of  amendment.  Therefore,  without  expressing  any 
opinion  in  regard  to  the  merits  of  the  bill,  I  place  it  again  in 
your  hands."  On  a  vote  that  the  bill  become  a  law  notwith- 
standing its  return,  43  voted  in  the  affirmative  and  178  in 

the  negative. 

House  Journal,  1885,  pp.  782,  793. 

NOTE.  —  The  "  desire  of  the  house  "  alluded  to  in  this  message  was  the  passage  by  the 
house  of  a  joint  resolution,  which  was  rejected  in  the  senate,  requesting  the  governor  to 
return  the  bill  for  reconsideration. 

1887. 
"An  act  in  relation  to  actions." 

Returned  to  the  house  by  Governor  Sawyer  October  6, 
1887,  with  the  objection  that  the  "provisions  of  section  1 
annul  and  invalidate  the  provisions  of  section  2,  so  that  the 
bill  as  a  whole  has  no  force  or  meaning."  The  bill  and 
measure  were  referred  to  the  committee  on  the  judiciary. 
On  October  13  the  committee  reported  a  resolution  that  the 
vote  whereby  the  bill  was  passed  be  reconsidered,  and  also 
reported  the  bill  in  a  new  draft,  which  obviated  the  objec- 


29 


tions  of  the  governor.  The  vote  whereby  the  bill  was  passed 
was  reconsidered,  the  question  being  stated  on  the  passage 
of  the  bill  notwithstanding  the  objections  of  the  governor, 
182  members  voted  in  the  negative  and  none  in  the  affirma- 
tive. 

House  Journal,  1887,  pp.  735,  753. 


1887. 

"  An  act  providing  for  the  establishment  of  railroad  corpora- 
tions by  general  law." 

Returned  by  Governor  Sawyer  to  the  house  October  18, 
with  objections  that  "without  entering  upon  the  intrinsic 
merits  of  the  measure  to  express  any  opinion,  I  am  moved  to 
object  to  this  bill  for  the  reason  that  corrupt  measures  have 
been  extensively  used  for  the  purpose  of  promoting  its  pas- 
sage, and  the  representatives  have  been  persistently  followed 
and  interfered  with  in  the  free  performance  of  their  legisla- 
tive duties,  and  that  while  no  evidence  has  been  produced 
that  any  member  of  the  legislature  has  been  unfaithful  to  his 
trust  and  oath  of  office,  yet  to  my  mind  it  is  conclusively 
shown  that  there  have  been  deliberate  and  systematic  attempts 
at  wholesale  bribery  of  the  servants  of  the  people  in  this 
legislature."  The  message  was  referred  to  the  committee  on 
the  judiciary,  who  reported  October  19,  recommending  that 
the  house  do  not  pass  the  bill.  November  4  the  bill  was 
taken  from  the  table  and  a  preamble  and  resolution  adopted 
by  the  house,  declaring  it  to  be  the  sense  of  the  house  that 
the  objections  made  by  the  governor  to  the  bill  were  not 
such  as  required  by  the  constitution  to  prevent  its  becoming 
a  law  by  the  lapse  of  time  without  his  signature,  and  that 
therefore  the  bill  had  become  a  law  without  the  signature  of 


30 


the  governor,  and  directing  it  to  be  transmitted,  together  with 
the  resolution  of  the  house,  to  the  secretary  of  state. 

House  Journal,  pp.  781,  795,  943,  946,  951. 

"An  act  regulating  fares  and  freights  on  railroads,  and  to 
provide  compensation  to  dissenting  stockholders  in  case 
of  railroad  leases." 

Keturned  to  the  house  by  Governor  Sawyer  November  4, 
with  objections  that  the  meritorious  part  of  the  bill  was  made 
a  vehicle  to  carry  through  legislation  which  would,  in  the 
opinion  of  the  governor,  be  detrimental  to  the  best  interests 
of  the  state,  and  also  that  the  6th  section  is  in  eifect  a  re- 
enactment  of  an  essential  part  of  an  act  in  relation  to  railroads 
returned  on  October  18,  and  that,  therefore,  the  reasons 
given  for  refusing  the  executive  signature  to  that  bill  applied 
to  this  bill.  No  action  appears  to  have  been  taken  upon  this 
message  or  with  regard  to  this  bill. 

House  Journal,  1887,  p.  960. 

"An  act  to  incorporate  the  Alliance  Trust  Company." 

Eeturned  by  Governor  Sawyer  to  the  senate  October  26, 
with  objection  that  a  general  provision  for  the  taxation  of 
all  loan  and  trust  companies  was  embodied  in  the  act,  thus 
incorporating  a  general  law  into  a  private  act.  Upon  the 
question  of  the  passage  of  the  bill  notwithstanding  the  objec- 
tions, 5  voted  in  the  affirmative  and  17  in  the  negative. 

Senate  Journal,  1887,  p.  455. 

Subsequently  a  bill  without  this  provision  was  enacted 
and  approved. 

Senate  Journal,  1887,  pp.  469,  533,  548. 


31 


"An  act  to  authorize  a  lease  of  the  Northern  Railroad." 

Returned  by  Governor  Sawyer  to  the  senate  November  1, 
with  objection  that  the  same  reasons  given  for  disaproving 
the  bill  returned  to  the  house  on  October  18  without  signa- 
ture, applied  to  a  large  portion  of  this  bill,  and  with  the 
additional  reasons  that  the  roads  proposed  by  the  bill  to  be 
authorized  to  lease  the  Northern  have  no  physical  connection 
with  it ;  that  the  interests  of  the  state  and  of  the  Concord 
Railroad  would  be  affected  by  the  bill,  and  that  it  is  ques- 
tionable whether  the  best  interests  of  the  state  would  not  be 
injured  by  the  railroad  consolidation  which  would  result 
from  the  bill.  Upon  the  question  of  the  passage  of  the  bill 
notwithstanding  the  objections,  the  bill  and  message  were 
upon  motion  laid  upon  the  table,  from  which  they  do  not 
appear  to  have  been  taken. 

Senate  Journal,  1887,  pp.  483,  486. 


32 


CONSTITUTIONAL  PROVISIONS  WITH  REFERENCE  TO 
REVISION  AND  NEGATIVE  OF  LEGISLATIVE  ACTS 
IN  THE  UNITED  STATES. 

In  the  Constitution  of  the  United  States  adopted  by  the 
convention  September  17,  1787,  the  provision  for  revision 
and  negative  of  acts  of  congress  by  the  president  is  found  in 
section  7,  article  I.,  as  follows  :  — 

"  Every  bill  which  shall  have  passed  the  house  of  representatives 
and  the  senate  shall,  before  it  become  a  law,  be  presented  to  the 
President  of  the  United  States.  If  he  approve,  he  shall  sign  it ; 
but  if  not,  he  shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If,  after 
such  reconsideration,  two  thirds  of  that  house  shall  agree  to  pass 
the  bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two  thirds  of  that  house,  it  shall  become  a  law.  But,  in  all 
such  cases,  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  persons  voting  for  and  against 
the  bill  shall  be  entered  on  the  journal  of  each  house,  respectively. 
If  any  bill  shall  not  be  returned  by  the  president  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  congress,  by  their  adjournment,  prevent  its  return,  in  which 
case  it  shall  not  be  a  law." 


PROVISIONS  OF  STATE  CONSTITUTIONS. 

Alabama. 

Section  16,  article  IV.,  of  the  original  constitution  of  1819 
gave  the  power  of  revision  and  of  qualified  negative  to  the 
governor  in  the  same  manner  in  which  the  United  States 
Constitution  gave  it  to  the  president,  except  that  it  provided 
that  the  bill  should  become  a  law  unless  returned  in  five 


33 


days,  and  that  it  miijht  become  a  law,  notwithstanding  the 
objection  of  the  governor,  by  a  vote  of  a  majority  of  the 
ivhole  number  of  members  elected  to  each  house. 

The  same  provision  was  retained  in  the  constitutions  of 
1865  and  1867,  and  is  now  section  13  of  article  V.  of  the 
constitution  of  1875. 

Arkansas. 

The  original  constitution  of  1836  contained  the  same  pro- 
vision as  the  original  constitution  of  Alabama. 

The  constitution  of  1864  retained  the  same  provision, 
except  that  it  was  provided  that  the  bill  should  be  a  law 
unless  returned  within  three  days.  This  provision  was 
retained  in  the  constitution  of  1868,  with  the  addition  that 
the  governor  may  "approve,  sign,  and  file  in  the  office  of 
the  secretary  of  state,  within  three  days  after  the  adjourn- 
ment of  the  general  assembly,  any  act  passed  during  the  last 
three  days  of  the  session,  and  the  same  shall  become  a  law." 

This  provision  was  retained,  and  is  now  section  15  of  arti- 
cle VI.  of  the  constitution  of  1874,  except  that  the  bill  may 
be  returned  within  five  days,  and  that  if  the  general  assem- 
bly by  their  adjournment  prevent  its  return  within  that 
time,  it  shall  become  a  law,  unless  the  governor  shall  "file 
the  same,  with  his  objections,  in  the  office  of  the  secretary 
of  state,  and  give  notice  thereof  by  public  proclamation 
within  twenty  days  after  such  adjournment." 

California. 

Section  17,  article  IV.,  of  the  constitution  of  1849  pro- 
vides that  every  bill  shall  be  presented  to  the  governor. 
"  If  he  approve  it,  he  shall  sign  it :  but  if  not,  he  shall 
return  it,  with  his  objections,  to  the  house  in  which  it  origi- 
nated, which  shall  enter  the  same  upon  the  journal,  and 
proceed  to  reconsider  it.  If,  after  such  reconsideration,  it 


34 


again  pass  both  houses,  by  yeas  and  nays,  by  a  majority  of 
two  thirds  of  each  house  present,  it  shall  become  a  law  not- 
withstanding the  governor's  objections  ;  "  and  also  provides 
that  the  bill,  if  not  returned  within  ten  days,  shall  become  a 
law  unless  the  legislature  by  adjournment  prevent  its  return. 

Colorado. 

Section  11,  article  IV.,  of  the  constitution  of  1876  gives 
the  power  of  revision  and  negative  to  the  governor  in  the 
same  manner  in  which  it  is  given  to  the  president,  with 
the  additional  provision,  if  the  general  assembly  by  their 
adjournment  prevent  the  return  of  the  bill,  it  shall  become 
a  law  unless  it  is  filed  by  the  governor,  with  his  objections, 
in  the  office  of  the  secretary  of  state  within  thirty  days  after 
such  adjournment. 

Section  12  of  this  article  also  gives  the  governor  power  to 
approve  of  any  part  or  parts  of  appropriation  bills,  and 
to  disapprove  of  any  item  or  item  thereof,  by  transmitting 
to  the  house  in  which  the  bill  originated  a  copy  of  the  item 
or  items  thereof  disapproved,  together  with  his  objections 
thereto  ;  in  which  case  the  items  objected  to  are  separately 
reconsidered,  and  the  same  course  taken  with  each  as  is  pre- 
scribed with  relation  to  bills  returned  by  the  governor  with 
objections. 

Connecticut. 

Section  12,  article  IV.,  of  the  constitution  of  181$  gives 
the  power  of  revision  and  negative  to  the  governor  in  the 
same  manner  that  it  is  given  to  the  president,  except  that,  if 
upon  reconsideration  each  house  shall  again  pass  the  bill,  it 
shall  become  a  law  notwithstanding  the  objections  of  the 
governor,  and  that  the  bill  must  be  returned  within  three 
days, 


35 


Delaware. 

Neither  the  original  constitution  of  1792,  nor  the  present 
constitution  of  1831,  provides  for  any  revision  or  negative 
upon  the  acts  of  the  legislature. 

Florida. 

Section  16,  article  III.,  of  the  original  constitution  of 
1838  gave  the  power  of  revision  and  qualified  negative  to 
the  governor  in  the  same  manner  that  it  is  given  to  the 
President  of  the  United  States,  except  that,  upon  the  return 
of  a  bill  with  objections,  it  might  be  passed  by  a  vote  of  a 
majority  of  the  whole  number  of  members  elected  to  each 
house,  and  that  it  must  be  returned  within  five  days. 

The  constitution  of  1865  retained  this  provision,  with  a 
change  requiring  two  thirds  of  the  whole  number  of  each 
house  voting  to  pass  the  bill  notwithstanding  the  governor's 
objections. 

Section  27,  article  V.,  of  the  constitution  of  1868  re- 
tains the  provision  of  the  constitution  of  1865,  with  the 
additional  provision  that  if  the  legislature,  by  its  adjourn- 
ment, prevent  the  return  of  the  bill  within  five  days,  it  shall 
be  a  law,  "  unless  the  governor,  within  ten  days  next  after 
the  adjournment,  shall  file  such  bill  with  his  objections 
thereto  in  the  office  of  the  secretary  of  state,  who  shall  lay 
the  same  before  the  legislature  at  its  next  session,  and  if  the 
same  shall  receive  two  thirds  of  the  votes  present  it  shall 
become  a  law." 

Georgia. 

The  original  constitution  of  1777  did  not  provide  for  any 
revision  or  negative  of  legislative  acts.  Section  10,  article' 
III.,  of  the  constitution  of  1789  provided  that  "The  gov- 
ernor shall  have  the  revision  of  all  bills  passed  by  both 


36 


houses  before  the  same  shall  become  laws,  but  two  thirds  of 
both  houses  may  pass  a  law  notwithstanding  his  dissent :  and 
if  any  bill  should  not  be  returned  by  the  governor  within 
five  days  after  it  hath  been  presented  to  him,  the  same  shall 
be  a  law  unless  the  general  assembly,  by  their  adjournment, 
shall  prevent  its  return."  This  provision  was  retained  as 
clause  6,  section  2,  article  III.,  of  the  constitution  of  1865, 
with  the  change  that  Sundays  should  not  be  counted  in  the 
five  days,  and  with  the  addition  that  the  governor  may  ap- 
prove any  appropriation  and  disapprove  any  other  appropri- 
ation in  the  same  bill,  and  the  latter  shall  not  be  effectual 
unless  passed  by  two  thirds  of  each  house,  and  is  now  clause 
6,  section  2,  article  IV.,  of  the  constitution  of  1868. 

Illinois. 

The  original  constitution  of  1818  provided  by  section  19, 
article  III.,  that  "  the  governor  and  the  judges  of  the  Supreme 
Court,  or  a  majority  part  of  them,"  should  be  a  council  to 
revise  all  bills  about  to  be  passed  into  laws  by  the  general 
assembly  which  should  be  presented  to  them,  and  that  all 
bills  which  passed  the  senate  and  house  should,  before  they 
became  laws,  be  presented  to  the  council  for  their  revisal 
and  consideration  ;  and  if  upon  such  revisal  and  considera- 
tion it  should  appear  improper  to  the  council,  or  a  majority 
of  them,  that  any  bill  should  become  a  law,  they  should  re- 
turn it,  together  with  their  objections  thereto  in  writing,  to 
the  house  in  which  it  originated,  who  should  enter  the  objec- 
tions on  their  minutes  and  proceed  to  reconsider  the  bill ; 
and  if,  upon  such  consideration,  it  should  agree  to  pass  the 
bill  by  a  majority  of  the  whole  number  of  members  elected, 
it  should  send  the  same,  together  with  the  objections,  to  the 
other^branch  of  the  general  assembly,  who  should  also  re- 


37 


consider  it,  and  if  approved  by  a  majority  of  all  its  members 
elected,  it  should  become  a  law.  This  section  also  provided 
that  if  any  bill  should  not  be  returned  by  the  council  within 
ten  days  after  it  was  presented  to  them,  it  should  be  a  law 
unless  the  general  assembly,  by  their  adjournment,  pre- 
vented its  return,  in  which  case  it  should  be  returned  by  the 
council  on  the  first  day  of  the  meeting  of  the  general  assem- 
bly after  the  expiration  of  the  ten  days,  or  be  a  law.* 

The  constitution  of  1848  provided  for  the  revision  of  leg- 
islative acts  by  the  governor  in  the  same  manner  in  which 
revision  of  acts  of  congress  is  provided  for  by  the  United 
States  Constitution,  except  that  bills  returned  by  the  gov- 
ernor with  objections  could  be  passed  by  a  majority  of  the 
members  of  each  house  elected,  and  that  if  the  general  assem- 
bly, by  adjournment,  prevented  the  return  of  a  bill  within 
ten  days,  it  should  be  a  law  unless  returned  on  the  first  day 
of  the  meeting  of  the  general  assembly  after  the  expiration 
of  said  ten  days. 

Section  21,  article  IV.,  111.  Const,  1848. 

The  present  constitution  retains  this  provision  of  the  con- 
stitution of  1848,  except  that  it  requires  two  thirds  of  the 
members  of  each  house  elected  to  pass  a  bill  notwithstanding 
the  objections  of  the  governor,  and  provides  that  in  case  the 
general  assembly,  by  adjournment,  prevent  the  return  of 
the  bill  within  ten  days,  it  shall  become  a  law  unless  filed 
by  the  governor  with  his  objections  in  the  office  of  the  sec- 
retary of  state  within  ten  days  after  such  adjournment. 

Section  16,  article  IV.,  111.  Const.  1870. 


*  This  provision,  except  as  to  the  vote  required  to  pass  a  bill  returned,  is  a  substan- 
tial copy  of  the  provision  of  the  New  York  constitution  of  1777  establishing  a  council 
of  revision. 


38 


Indiana. 

The  original  constitution  of  1816  copied  the  provision  of 
the  Constitution  of  the  United  States,  except  that  it  provided 
that  a  bill  returned  by  the  governor  with  objections  might 
be  passed  by  a  majority  of  all  the  members  elected  to  each 
house,  and  that  it  should  be  returned  within  five  days  or 
should  become  a  law,  unless  the  general  assembly,  by  its 
adjournment,  prevented  its  return,  in  which  case  it  should 
be  a  law,  unless  returned  within  three  days  after  their  next 
meeting.  This  provision  is  retained  in  the  constitution  of 
1851,  with  the  addition  that  if  the  return  of  a  bill  is  pre- 
vented by  the  adjournment  of  the  assembly  within  the  five 
days,  it  shall  be  a  law  unless  the  governor,  within  five  days 
next  after  such  adjournment,  shall  file  it  with  his  objections 
thereto  in  the  office  of  the  secretary  of  state,  who  shall  lay 
the  same  before  the  general  assembly  at  its  next  session  in 
like  manner  as  if  it  had  been  returned  by  the  governor,  but 
that  no  bills  shall  be  presented  to  the  governor  within  two 
days  next  previous  to  the  final  adjournment  of  the  general 
assembly. 

Section  14,  article  V.,  Ind.  Const.  1851. 

Iowa. 

The  original  constitution  of  1846  gave  the  power  of  re- 
vision to  the  governor  in  the  same  manner  in  which  it  is 
given  to  the  president,  but  provided  that  the  bill  should 
become  a  law  unless  returned  within  three  days  after  it  was 
presented  to  the  governor,  unless  such  return  was  prevented 
by  the  adjournment  of  the  general  assembly,  and  provided 
that  any  bill  submitted  to  the  governor  for  his  approval  dur- 
ing the  last  three  days  of  a  session  of  the  assembly  should 
be  deposited  by  him  in  the  office  of  the  secretary  of  state 


39 


within  thirty  days  after  the  adjournment  with  his  approval 
or  with  his  objections  thereto.* 

Section  16,  article  III.,  Iowa  Const.  1846. 

The  constitution  of  1857  retains  these  provisions  as  sec- 
tions 16  and  17,  article  III. 

Kansas. 

The  original  constitution  of  1855  gave  the  power  of  re- 
vision to  the  governor  in  the  same  manner  as  it  is  given  to 
the  President  of  the  United  States,  except  that  any  bill  not 
returned  by  the  governor  within  five  days  became  a  law, 
unless  the  general  assembly,  by  adjournment,  prevented  its 
return,  in  which  case  it  also  became  a  law  unless  sent  back 
within  two  days  after  the  next  meeting. 

Section  19,  article  V. 

The  constitution  of  1857  retained  this  provision,  except 
that  it  provided  that  a  bill  not  returned  by  the  governor 
within  six  days  should  be  a  law,  unless  the  legislature,  by 
their  adjournment,  prevented  its  return,  in  which  case  it 
should  not  be  a  law.f 

The  constitution  of  1858  adopted  the  same  provision,  ex- 
cept that  it  provided  that  a  bill  returned  by  the  governor 
might  be  passed  notwithstanding  his  objections,  by  a  major- 
ity of  each  house,  and  that  a  bill  not  returned  within  three 
days  should  be  a  law  unless  the  general  assembly,  by  ad- 
journment, prevented  its  return. 

*  Section  17  of  this  article  provided  that  no  bill  should  be  passed  unless  by  the  assent 
of  a  majority  of  all  members  elected  to  each  branch  or  the  general  assembly,  and  that 
the  question  upon  the  passage  of  all  bills  should  be  taken  immediately  upon  its  last 
reading,  and  by  yeas  and  nays  entered  on  the  journal. 

t  This  was  the  constitution  which  was  known  as  the  Lecompton  pro-slavery  consti- 
tution. 


40 


The  present  constitution  of  1859  adopts  the  provision  of 
the  United  States  Constitution,  except  that  it  requires  a 
vote  of  two  thirds  of  all  the  members  elected  to  each  house  to 
pass  a  bill  returned  by  the  governor  notwithstanding  his 
objections,  and  provides  that  if  a  bill  is  not  returned  within 
three  days,  it  shall  become  a  law  unless  the  legislature  by 
its  adjournment  prevents  its  return  ;  in  which  case  it  shall 

not. 

Section  14,  article  II. 

Kentucky. 

The  original  constitution  of  1792  adopted  the  provision  of 
the  United  States  Constitution,  except  that  it  provided  that 
if  the  general  assembly  by  their  adjournment  prevented  the 
return  of  a  bill  within  the  ten  days,  it  should  be  a  law  unless 
sent  back  within  three  days  after  their  next  meeting. 

The  constitution  of  1799  retained  this  provision,  except 
that  it  provided  that  a  bill  returned  by  the  governor  might 
be  passed  by  a  majority  of  all  members  elected  to  each  house; 
and  the  constitution  of  1850  retains  this  provision  of  the 
constitution  of  1799  as  section  22,  article  III. 

Louisiana. 

The  original  constitution  of  1812  adopted  the  provision  of 
the  Constitution  of  the  United  States,  except  that  it  required 
a  vote  of  two  thirds  of  all  the  members  elected  to  each  house 
to  pass  a  bill  returned  by  the  governor,  and  provided  that 
if  the  general  assembly  by  their  adjournment  prevented  the 
return  of  the  bill  within  ten  days,  it  should  not  be  a  law  if 
returned,  with  objections,  within  three  days  after  their  next 
meeting. 

The  constitution  of  1845  and  the  constitution  of  1852 
retained  this  provision  of  the  constitution  of  1812,  and  the 


41 


constitution  of  1864  also  retained  this  provision,  with  the 
exception  of  that  part  which  provided  that  in  case  the  gen- 
eral assembly  by  its  adjournment  prevented  the  return  of  a~ 
bill  within  ten  days,  it  should  be  a  law  unless  sent  back 
within  three  days  after  the  next  meeting  of  the  assembly, 
which  was  not  retained. 

The  constitution  of  1868  retains  this  provision,  except 
that  a  bill  may  be  passed  by  a  two-thirds  vote  of  all  the 
members  present  in  each  house,  and  that  a  bill  not  returned 
within  five  days  shall  be  a  law  unless  the  general  assembly 
by  adjournment  prevent  its  return ;  in  which  case  it  shall  be 
a  law,  unless  returned  on  the  first  day  of  the  meeting  of  the 
general  assembly  after  the  expiration  of  five  days. 

Article  LXVI. 

Maine. 

The  constitution  of  1820  adopts  substantially  the  pro- 
vision of  the  United  States  Constitution,  except  that  it 
specifically  provides  that  a  bill  reconsidered  and  passed  by  a 
two-thirds  vote  of  each  house  "shall  have  the  same  effect  as 
if  it  had  been  signed  by  the  governor,"  and  that  any  bill  or 
resolution  not  returned  within  five  days  shall  "have  the 
same  force  and  effect  as  if  he  [the  governor]  had  signed  it," 
unless  the  return  is  prevented  by  the  adjournment  of  the 
legislature ;  "  in  which  case  it  shall  have  such  force  and 
effect  unless  returned  within  three  days  after  their  next 


meeting.' 


Section  2,  article  IV.,  part  III. 


Maryland. 

The  original  constitution  of  1776  vested  the  legislative 
power  in  a  senate  and  house  of  delegates,  and  contained  no 
provision  for  the  revision  or  negative  of  their  acts. 


42 


No  such  provision  was  contained  in  the  constitution  of 
1851  or  the  constitution  of  1864,  but  the  constitution  of 
1867  provides  that  "to  guard  against  hasty  or  partial  legis- 
lation, and  encroachment  of  the  legislative  department  upon 
the  co-ordinate  executive  and  judicial  departments,"  every 
bill  before  it  becomes  a  law  shall  be  presented  to  the  gov- 
ernor, who  shall  sign  it  if  he  approves  it,  and  if  not  shall 
return  it  to  the  house  in  which  it  originated,  and  then,  if 
three  fifths  of  the  members  elected  to  each  house  "  shall  pass 
the  bill,"  it  shall  become  a  law,  but  that  if  the  bill  be  not 
returned  within  six  days  it  shall  be  a  law  "  in  like  manner  as 
if  he  signed  it,"  unless  the  general  assembly  by  its  adjourn- 
ment prevent  its  return,  in  which  case  it  shall  not  be  a  law. 

Section  17,  article  III. 

Massachusetts. 

The  original  constitution  of  1780  contained  the  following 
provision  as  article  2,  chapter  1  :  — 

"  No  bill  or  resolve  of  the  senate  or  house  of  representatives 
shall  become  a  law,  and  have  force  as  such,  until  it  shall  have 
been  laid  before  the  governor  for  his  revisal ;  and  if  he,  upon 
such  revision,  approve  thereof,  he  shall  signify  his  approba- 
tion b}'  signing  the  same.  But  if  he  have  any  objection  to 
the  passing  of  such  bill  or  resolve,  he  shall  return  the  same, 
together  with  his  objections  thereto,  in  writing,  to  the  senate 
or  house  of  representatives,  in  whichsoever  the  same  shall  have 
originated ;  who  shall  enter  the  objections  sent  down  by  the  gov- 
ernor, at  large,  on  their  records,  and  proceed  to  reconsider  the  said 
bill  or  resolve.  But  if.  after  such  reconsideration,  two  thirds  of 
the  said  senate  or  house  of  representatives  shall,  notwithstanding 
the  said  objections,  agree  to  pass  the  same,  it  shall,  together  with 
the  objections,  be  sent  to  the  other  branch  of  the  legislature, 
where  it  shall  also  be  reconsidered,  and  if  approved  by  two  thirds 
of  the  members  present,  shall  have  the  force  of  a  law :  but  in  all 


43 


such  cases,  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays  ;  and  the  names  of  the  persons  voting  for,  or  against,  the 
said  bill  or  resolve  shall  be  entered  upon  the  public  records  of  the 
commonwealth. 

"And  in  order  to  prevent  unnecessary  delays,  if  any  bill  or 
resolve  shall  not  be  returned  by  the  governor  within  five  days 
after  it  shall  have  been  presented,  the  same  shall  have  the  force  of 
a  law." 

In  1821,  the  following  amendment  was  adopted  :  "If  any 
bill  or  resolve  shall  be  objected  to  and  not  approved  by  the 
governor,  and  if  the  general  court  shall  adjourn  within  five 
days  after  the  same  shall  have  been  laid  before  the  governor 
for  his  approbation,  and  thereby  prevent  his  returning  it 
with  his  objections,  as  provided  by  the  constitution,  such 
bill  or  resolve  shall  not  become  a  law,  nor  have  force  as 
such." 

Michigan. 

The  original  constitution  of  1835  adopted  the  provision  of 
the  United  States  Constitution,  except  that  it  specifically 
provided  that  a  bill  returned  with  objections  might  be 
passed  by  each  house  by  a  two-thirds  vote  of  all  the  mem- 
bers present.  .  The  constitution  of  1850  retains  this  pro- 
vision, except  that  it  requires  two  thirds  of  the  members  of 
each  house  elected  to  pass  a  bill  returned  with  objections,  and 
provides  that  if  the  legislature  by  their  adjournment  pre- 
vent the  return  of  a  bill  within  ten  days,  the  governor  may 
approve,  sign,  and  file  in  the  office  of  the  secretary  of  state 
within  five  days  after  the  adjournment  of  the  legislature,  any 
act  passed  during  the  last  five  days  of  the  session ,  and  the 
same  shall  become  a  law. 

Section  14,  article  IV. 


44 


Minnesota . 

The  present  constitution  of  1857  adopts  substantially  the 
provision  of  the  United  States  Constitution,  but  it  specifi- 
cally provides  that  if  the  governor  approves  a  bill,  "he  shall 
sign  and  deposit  it  in  the  office  of  the  secretery  of  state  for 
preservation,  and  notify  the  house  where  it  originated  of  the 
fact,"  and  for  the  return  of  bills  in  three  days  instead  of  ten  ; 
and  also  provides  that  the  governor  may  approve,  and  sign, 
and  file  in  the  office  of  the  secretary  of  state,  within  three 
days  after  the  adjournment  of  the  legislature,  any  act  passed 
during  the  three  last  days  of  the  session. 

Section  11,  article  IV. 

Mississippi. 

The  original  constitution  of  1817  adopted  the  provision  of 
the  United  States  Constitution,  except  that  it  provided  for 
the  return  of  bills  within  six  days  instead  of  ten.  The  con- 
stitution of  1832  retained  this  provision,  and  the  present 
constitution  of  1868  retains  it,  except  that  it  provides  for 
the  return  of  bills  within  five  days  instead  of  ten,  and  that 
in  case  the  legislature  by  adjournment  prevent  the  return  of 
a  bill,  it  shall  be  a  law  unless  sent  back  within  three  days 
after  its  next  meeting. 

Section  24,  article  IV. 

Missouri. 

The  original  constitution  of  1820  adopted  the  provision  of 
the  United  States  Constitution,  except  that  it  provided  that 
a  bill  returned  by  the  governor  might  be  passed  by  a 
majority  of  all  the  members  elected  to  each  house.  The  con- 
stitution of  1865  retained  this  provision  of  the  constitution 


45 


of  1820,  with  the  addition  that  if  the  legislature  prevented 
the  return  of  a  bill  by  adjournment  within  ten  days  after  it 
was  presented  to  the  governor,  he  might  sign  and  deposit 
the  same  in  the  office  of  the  secretary  of  state  within  the 
ten  days,  and  it  should  become  a  law  in  like  manner  as  if  it 
had  been  signed  by  him  during  the  session  of  the  general 
assembly.  The  constitution  of  1875  provides  for  the  pre- 
sentation of  bills  to  the  governor  on  the  same  day  on  which 
they  are  signed  by  the  presiding  officers  of  the  two  houses, 
and  that  they  shall  become  laws  if  returned  to  the  house  in 
which  they  originated,  with  the  approval  of  the  governor, 
within  ten  days  thereafter ;  also  that  "  every  bill  returned 
without  the  approval  of  the  governor  and  with  his  objec- 
tions thereto  shall  stand  as  reconsidered  in  the  house  to 
which  it  is  returned.  The  house  shall  cause  the  objections 
of  the  governor  to  be  entered  at  large  upon  the  journal,  and 
proceed  at  its  convenience  to  consider  the  question  pending, 
which  shall  be  in  this  form  :  '  Shall  the  bill  pass,  the  objec- 
tions of  the  governor  thereto  notwithstanding  ? ' '  It  also 
provides  that  if,  upon  the  vote  upon  this  question,  "two 
thirds  of  all  the  members  elected  to  each  house  shall  vote  in 
the  affirmative,  that  fact  shall  be  certified  by  the  presiding 
officers  upon  the  bill,  and  it  shall  thereupon  be  deposited  in 
the  office  of  the  secretary  of  state,  and  become  a  law  in 
the  same  manner  as  if  it  had  received  the  approval  of  the 
governor. 

It  also  provides  that  if  the  governor  shall  fail  to  perform 
his  duty  of  approving  or  disapproving  any  bill  presented  to 
him,  the  general  assembly  may  by  joint  resolution  recite 
the  fact  of  such  failure  and  the  bill  at  length,  and  direct  the 
secretary  of  state  to  enroll  the  same  as  an  authentic  act  in 
the  archives  of  the  state,  and  such  enrollment  shall  have  the 
same  effect  as  an  approval  by  the  governor,  and  that  such 


46 


joint  resolution  shall  not  be  presented  to  the  governor  for 
his  approval. 

Sects.  37,  38,  39,  40,  art.  IV. 

It  further  provides  that  the  governor  shall  consider  all 
bills  and  joint  resolutions  thus  presented  to  him,  and  return 
them  within  ten  days,  "with  his  approval  endorsed  thereon, 
or  accompanied  by  his  objections  ;  "  but  if  the  general  assem- 
bly finally  adjourn  within  the  ten  days,  he  may  "within 
thirty  days  thereafter  return  such  bills  and  resolutions  to 
the  office  of  the  secretary  of  state  with  his  approval  or 
reasons  for  disapproval ;  and  that  the  governor  may  disap- 
prove any  item  of  an  appropriation  bill  while  approving 
other  items  of  the  same  bill,  by  returning  a  statement  of  the 
items  disapproved  to  the  legislature  in  the  same  manner  as 
a  bill  disapproved,  in  which  case  the  same  proceedings  shall 
be  had  as  in  case  of  the  return  of  a  bill ;  and  that  if  the 
legislature  be  not  in  session,  he  may  transmit  the  items  thus 
approved  and  those  disapproved,  with  his  reasons  for  disap- 
proval, within  thirty  days,  to  the  office  of  the  secretary  of 
state. 

Sects.  12,  13,  art.  V. 

Nebraska. 

The  constitution  of  1874  substantially  adopts  the  provision 
of  the  United  States  Constitution,  except  that  it  requires  a 
vote  of  three  fifths  of  the  members  of  each  house  elected  to 
pass  a  bill  notwithstanding  the  governor's  objections,  and 
that  any  bill  not  returned  by  the  governor  within  five  days 
shall  become  a  law  unless  the  legislature  by  adjournment 
prevent  its  return,  in  which  case  it  shall  become  a  law  unless 
he  files  it  with  his  objections  in  the  office  of  the  secretary  of 
state  within  five  days  after  such  adjournment,  and  also  that 


47 


the  governor  may  disapprove  any  item  or  items  of  appropria- 
tion bills,  which  shall  be  stricken  therefrom  unless  repassed 
in  the  manner  prescribed  in  cases  of  disapproval  of  bills. 

Section  15,  article  V. 

Nevada. 

The  constitution  of  1864  substantially  adopts  the  provision 
of  the  United  States  Constitution,  except  that  it  requires  a 
vote  of  two  thirds  of  the  members  elected  to  each  house  to 
pass  the  bill  notwithstanding  the  governor's  objections,  and 
also  provides  that  "bills  shall  be  returned  within  five  days, 
unless  the  legislature  by  its  final  adjournment  prevent  such 
return,"  in  which  case  they  shall  become  laws,  unless  the 
governor  within  ten  days  next  after  the  adjournment  (Sun- 
day excepted)  shall  file  them  with  his  objections  thereto  in 
the  office  of  the  secretary  of  state,  who  shall  lay  the  same 
before  the  legislature  at  its  next  session  in  like  manner  as 
though  they  had  been  returned  by  the  governor ;  and  if  the 
same  shall  receive  the  vote  of  two  thirds  of  the  members 
elected  to  each  branch  of  the  legislature,  they  become  laws. 

Section  35,  article  IV. 

New  Hampshire. 

Neither  the  original  constitution  of  1776  nor  the  constitu- 
tion of  1784  contained  any  provision  for  the  revision  and 
negative  of  legislative  acts.  The  constitution  of  1792  sub- 
stantially adopts  the  provision  of  the  Constitution  of  the 

United  States. 

Section  44,  part  2. 

jyew  Jersey. 

The  constitution  of  1776  contained  no  provision  for  revi- 
sion or  negative  of  legislative  acts. 


48 


The  constitution  of  1844  substantially  adopted  the  pro- 
vision of  the  Constitution  of  the  United  States,  except  that 
it  provides  that  bills  returned  with  objections  by  the  governor 
may  be  passed  by  a  vote  of  the  majority  of  the  whole  number 
of  each  house,  but  that  "in  neither  house  shall  the  vote  be 
taken  on  the  same  day  on  which  the  bill  shall  be  returned  to 
it,"  and  that  bills  shall  be  returned  within  five  days  instead 

of  ten. 

Clause  7,  article  V. 

By  amendment  adopted  in  1875,  the  governor  may  "ob- 
ject to  one  or  more  items  of  an  appropriation  bill  while 
approving  the  other  portions  of  the  bill,"  by  appending  to 
the  bill  at  the  time  of  signing  it  a  statement  of  the  items  to 
which  he  objects,  and,  if  the  legislature  be  in  session,  trans- 
mitting to  the  house  in  which  the  bill  originated  a  copy  of 
such  statement,  whereupon  the  items  objected  to  shall  be 
separately  reconsidered,  and  such  of  them  as  may  be  ap- 
proved by  a  majority  of  the  members  elected  to  each  house 
shall  be  a  part  of  the  law  notwithstanding  the  objections." 

New  York. 

The  original  constitution  of  1777  contained  the  following 
provision  for  revision  and  qualified  negative  of  legislative 
acts :  — 

"  III.  And  whereas  laws  inconsistent  with  the  spirit  of  this  con- 
stitution or  with  the  public  good  may  be  hastily  or  unadvisedly 
passed :  Be  it  ordained  that  the  governor,  for  the  time  being  the 
chancellor,  and  the  judges  of  the  Supreme  Court,  or  any  two  of 
them,  together  with  the  governor,  shall  be  and  hereby  are  consti- 
tuted a  council  to  revise  all  bills  about  to  be  passed  into  laws  by 
the  legislature,  and  for  that  purpose  shaH  assemble  themselves  from 
time  to  time  when  the  legislature  shall  be  convened,  for  which,  nev- 
ertheless, they  shall  not  receive  any  salary  or  consideration  under 


49 


any  pretence  whatever.  And  that  all  bills  which  have  passed  the 
senate  or  assembly  shall  before  they  become  laws  be  presented  to 
the  said  council  for  their  revisal  and  consideration  ;  and  if  upon 
such  revision  and  consideration  it  should  appear  improper  to  t?he 
said  council,  or  a  majority  of  them,  that  the  said  bill  should  become 
a  law  of  this  state,  that  they  return  the  same,  together  with  their 
objections  thereto,  in  writing,  to  the  senate  or  house  of  assembly 
(in  whichsoever  the  same  shall  have  originated),  who  shall  enter 
the  objections  sent  down  by  the  council  at  large  in  their  minutes, 
and  proceed  to  reconsider  the  said  bill.  But  if  after  such  consid- 
eration two  thirds  of  the  said  senate  or  house  of  assembly  shall, 
notwithstanding  the  said  objections,  agree  to  pass  the  same,  it 
shall,  together  with  the  objections,  be  sent  to  the  other  branch  of 
the  legislature,  where  it  shall  also  be  reconsidered,  and  if  approved 
by  two  thirds  of  the  members  present,  shall  be  law. 

"  And  in  order  to  prevent  any  unnecessary  delays,  be  it  further 
ordained  that  if  any  bill  shall  not  be  returned  by  the  council 
within  ten  days  after  it  shall  have  been  presented,  the  same  shall 
be  a  law,  unless  the  legislature  shall  by  their  adjournment  render 
a  return  of  the  said  bill  within  ten  days  impracticable,  in  which 
case  the  bill  shall  be  returned  on  the  first  day  of  the  meeting  of 
the  legislature  after  the  expiration  of  the  ten  days." 

Article  III.  Const.  1777. 


In  the  constitution  of  1821,  the  provision  of  the  United 
States  Constitution  was  substituted  for  the  foregoing  pro- 
vision, with  the  specific  statement  that  two  thirds  "of  the 
members  present  might  pass  the  bill  notwithstanding  the 
governor's  objections." 

Section  12,  Article  L,  Const.  1821. 

The  constitution  of  1846  retained  this  provision  of  the 
constitution  of  1821  as  section  9,  article  IV.  In  1874,  this 
provision  was  amended  so  as  to  require  a  vote  of  two  thirds 
of  the  members  elected  to  each  house  to  pass  a  bill  notwith- 
standing the  objections  of  the  governor,  and  that  if  the  leg- 


islature  prevent  the  return  of  a  bill  by  adjournment  within 
the  ten  days,  the  governor  may  approve  it  within  thirty 
days  after  the  adjournment ;  and  also  by  a  provision  that 
the  governor  may  object  to  one  or  more  of  the  items  of  an 
appropriation  bill  while  approving  of  the  other  portion  of 
the  bill,  lay  appending  to  the  bill,  at  the  time  of  signing  it,  a 
statement  of  the  items  to  which  he  objects,  and,  if  the  legis- 
lature be  in  session,  transmitting  to  the  house  in  which  such 
bill  originates,  a  copy  of  such  statement,  and  that  thereupon 
the  items  objected  to  shall  be  separately  reconsidered,  as  in 
case  of  a  bill  returned  with  objections. 

South  Carolina. 

Neither  the  original  constitution  of  1776,  nor  the  consti- 
tution of  1868,  nor  the  present  constitution  of  1876,  contains 
any  provision  for  revision  or  negative  of  legislative  acts. 

Ohio. 

Neither  the  original  constitution  of  1802  nor  the  present 
constitution  of  1851  contains  any  provision  for  the  revision 
or  negative  of  legislative  acts. 

Oregon. 

The  constitution  of  1857  adopts  substantially  the  provision 
of  the  Constitution  of  the  United  States,  except  that  it  spe- 
cifically provides  that  two  thirds  "  of  the  members  present " 
may  pass  a  bill,  notwithstanding  the  governor's  objections, 
and  that  the  bill  shall  be  returned  within  five  days  instead 
often,  and  if  its  return  is  prevented  by  the  general  adjourn- 
ment of  the  legislature  it  shall  be  a  law,  "unless  the  gov- 
ernor, within  five  days  next  after  the  adjournment,  files  it 
with  his  objections  thereto  in  the  office  of  the  secretary  of 
state,  who  shall  lay  it  before  the  legislative  assembly  at  its 


51 

next  session  in  like  manner  as  if  it  had  been  returned  by  the 

governor." 

Section  15,  article  IV. 

Pennsylvania. 

The  original  constitution  of  1776  contained  no  provision 
for  the  revision  or  negative  of  legislative  acts,  but  provided 
that,  "  to  prevent  the  inconvenience  of  hasty  determinations 
as  much  as  possible,"  all  bills  of  a  public  nature  should  be 
"printed  for  the  consideration  of  the  people  before  they 
were  read  in  general  assembly  the  last  time  for  debate  and 
amendment,  and,  except  on  occasions  of  sudden  necessity, 
should  not  be  passed  into  laws  until  the  next  session  of 

assembly." 

Section  15,  Const.  1776. 

The  constitution  of  1790  adopted  the  provision  of  the 
Constitution  of  the  United  States,  with  the  exception  that  it 
provided  that  if  the  return  of  a  bill  by  the  governor  within 
the  ten  days  was  prevented  by  the  adjournment  of  the  assem- 
bly, it  should  be  a  law  "  unless  sent  back  within  three  days 
after  their  next  meeting,"  and.  the  constitution  of  1838 
retained  this  provision. 

The  constitution  of  1873  retains  this  provision,  with  a 
change  providing  that  if  the  return  of  a  bill  is  prevented  by 
the  adjournment  of  the  assembly  within  the  ten  days,  it 
shall  be  a  law  unless  the  governor  "shall  file  the  same,  with 
his  objections,  in  the  office  of  the  secretary  of  the  common- 
wealth, and  give  notice  thereof  by  public  proclamation 
within  thirty  days  after  such  adjournment,"  and  with  the 
addition  of  a  provision  that  the  governor  shall  have  power 
to  "disapprove  of  any  item  or  items  of  any  bill  making 
appropriations  of  money  embracing  distinct  items,  and  the 


52 

part  or  parts  of  the  bill  approved  shall  be  the  law,  and  the 
item  or  items  of  appropriation  disapproved  shall  be  void 
unless  repassed  according  to  the  rules  and  limitations  pre- 
scribed for  the  passage  of  other  bills  over  the  executive 

veto." 

Sections  15  and  16,  article  IV. 

Rhode  Island. 

This  state  adopted  no  constitution  till  1842,  and  the  con- 
stitution then  adopted  contains  no  provision  for  the  revision 
or  negative  of  legislative  acts. 

South  Carolina. 

The  original  constitution  of  1776  provided  that  the  "legis- 
lative authority  be  vested  in  the  president  and  commander- 
in-chief,  the  general  assembly,  and  legislative  council,"  and 
that "  bills  having  passed  the  general  assembly  and  legisla- 
tive council  may  be  assented  to  or  rejected  by  the  president 
and  commander-in-chief." 

Article  7,  Const.  1776. 

Neither  the  constitution  of  1778,  or  of  1790,  or  of  1865, 
contained  any  provision  for  revision  or  negative  of  legisla- 
tive acts.  The  constitution  of  1868  adopts  the  provision  of 
the  United  States  Constitution,  except  that  it  requires  bills 
to  be  returned  within  three  days,  and  provides  that  in  case 
the  general  assembly  by  their  adjournment  prevent  such 
return,  they  "shall  not  have  force  or  effect  as  laws  unless 
returned  within  two  days  after  the  next  meeting  of  the 

assembly." 

Section  22,  article  III. 


53 


Tennessee. 

Neither  the  original  constitution  of  1796  nor  the  constitu- 
tion of  1834  contained  any  provision  for  revision  or  negative 
of  legislative  acts.  The  constitution  of  1870  adopts  the 
provision  of  the  Constitution  of  the  United  States,  except 
that  it  provides  that  bills  returned  by  the  governor  may  be 
passed  by  a  majority  vote  of  the  members  elected  to  each 
house,  and  that  bills  and  resolutions  shall  be  returned  within 
five  days  instead  of  ten. 

Section  18,  article  III. 

Texas. 

The  "  Constitution  of  the  Republic  of  Texas  "  provided  that 
every  act  of  the  congress  of  the  republic  should  be  approved 
and  signed  by  the  president  before  it  became  a  law,  but  that 
if  the  president  would  not  approve  and  sign  such  act  he 
should  return  it  to  the  house  in  which  it  originated,  "  with  his 
reasons  for  not  approving  the  same,"  which  reasons  should 
be  spread  upon  the  journals  of  such  house  and  the  bill  then 
be  reconsidered,  and  should  not  become  a  law  unless  it 
should  then  pass  by  a  yea  and  nay  vote  of  two  thirds  of  both 
houses ;  also,  that  if  the  president  failed  to  return  a  bill 
within  five  days  the  same  should  become  a  law  unless  the 
congress  prevented  its  return  by  adjournment. 

Section    26,    article   I,    Const.    Republic   of  Texas, 
1836. 

The  original  constitution  of  Texas  as  a  state  of  the  United 
States  in  1845  adopted  the  provision  of  the  United  States 
Constitution,  except  that  it  specifically  provided  that  a  bill 
returned  by  the  governor  might  be  passed  by  a  vote  of  two 
thirds  of  the  members  present,  that  bills  should  be  returned 


54 


within  five  days  instead  of  ten,  and  if  not  thus  returned 
should  be  laws  in  like  manner  as  if  signed  by  the  governor, 
and  also  that  every  bill  presented  to  the  governor  one  day 
previous  to  the  adjournment  of  the  legislature  and  not  re- 
turned before  its  adjournment,  should  become  a  law  without 
his  signature.  (Section  17.) 

The  constitution  of  1866  retained  this  provision,  with  the 
addition  that  the  governor  might "  approve  an}7  appropriation 
and  disapprove  any  other  appropriation  in  the  same  bill,  by 
designating  in  signing  the  bill  the  appropriations  disapproved, 
and  returning  a  copy  of  such  appropriations  with  his  objec- 
tions, in  which  case  the  same  proceedings  should  be  had  as 
to  the  appropriations  thus  returned  as  in  the  case  of  bills 
disapproved,  and  that  if  the  legislature  adjourned  before  a 
bill  was  returned,  the  governor  might  return  it  to  the  secretary 
of  state  with  his  objections,"  and  also  to  the  next  session  of 
the  legislature.  (Section  17.) 

The  constitution  of  1868  retains  this  provision  of  the  con- 
stitution of  1845  as  changed  by  that  of  1866,  with  the  further 
change  that  if  the  legislature  have  adjourned  before  a  bill  is 
returned,  the  governor  "may  return  it  with  his  objections  to 
the  secretary  of  state,  to  be  submitted  to  both  houses  at  the 
succeeding  session  of  the  legislature."  (Section  25.) 

Vermont. 

The  original  constitution  adopted  by  the  people  of  Vermont 
in  1777  vested  "the  supreme  legislative  power  in  a  house  of 
representatives  of  the  Freemen  or  Commonwealth  or  State  of 
Vermont, "and  the  supreme  executive  power  in  a  governor  and 
council.  It  contained  no  definite  provision  for  the  negative 
of  legislative  acts,  but  provided  that  all  bills  of  public  nature 
before  they  were  enacted  should  be  laid  before  the  governor 
and  council  "for  their  perusal  and  proposals  of  amendment," 


,55 

and  be  printed  for  the  consideration  of  the  people  before 
they  were  read  in  general  assembly  for  the  last  time  of 
debate  and  amendment,  and  that  except  temporary  acts, 
which  after  being  laid  before  the  governor  and  council  might 
(in  case  of  sudden  necessity)  be  passed  into  laws,  no  acts 
should  be  passed  until  the  next  session  of  assembly.  (Sec- 
tion 14.) 

The  original  constitution  of  Vermont  as  a  state  adopted 
in  1786  contained  this  provision:  "To  the  end  that  laws 
before  they  are  enacted  may  be  more  maturely  considered 
and  the  inconvenience  of  hasty  determinations  as  much  as 
possible  prevented,  all  bills  which  originate  in  the  assembly 
shall  be  laid  before  the  governor  and  council  for  their  revi- 
sion and  concurrence  or  proposals  of  amendment,  who  shall 
return  the  same  to  the  assembly  with  their  proposals  ot 
amendment  (if  any)  in  writing,  and  if  the  same  are  not 
agreed  to  by  the  assembly  it  shall  be  in  the  power  of  the 
governor  and  council  to  suspend  the  passing  of  such  bills 
until  the  next  session  of  the  legislature.  Provided,  that  if 
the  governor  and  council  shall  neglect  or  refuse  to  return 
any  such  bill  to  the  assembly  with  written  proposals  of 
amendment  within  five  days  or  before  the  rising  of  the  legis- 
lature, the  same  shall  become  a  law.  (Section  16.) 

The  constitution  of  1793  retained  this  provision  of  the 
constitution  of  1786,  but  in  1836  an  amendment  was  adopted 
which  substituted  for  it  the  provision  of  the  United  States 
Constitution,  except  that  it  provides  that  bills  may  be  passed, 
notwithstanding  the  objections  of  the  governor,  by  a  major- 
ity of  each  house,  and  that  if  a  bill 'should  not  be  returned 
within  five  days  after  it  is  presented  to  the  governor,  it  shall 
become  a  law  unless  the  two  houses  by  their  adjournment 
within  three  days  after  the  presentment  of  the  bill  prevent 
its  return,  in  which  case  it  shall  not  become  ajlaw. 

Section  16,  art.  XI.  Amdts.  1837. 


Virginia. 

Neither  the  original  constitution  of  1776  nor  the  constitu- 
tion of  1830,  1850,  or  1864  contained  any  provision  for  the 
revision  or  negative  of  legislative  acts.  The  constitution  of 
1870,  however,  adopts  the  provision  of  the  United  States 
Constitution,  except  that  it  requires  bills  to  be  returned 
within  five  days  instead  of  ten. 

Section  8,  art.  IV. 

West  Virginia. 

The  original  constitution  of  1863,  which  appears  to  have 
been  modelled  upon  that  of  Virginia,  contained  no  provision 
for  revision  or  negative  of  legislative  acts.  The  constitution 
of  1872  adopts  the  provision  of  the  United  States  Constitu- 
tion, except  that  it  provides  that  a  bill  returned  with  objec- 
tions by  the  governor  may  be  passed  by  a  vote  of  a  majority 
of  the  members  elected  to  each  house,  that  the  bills  shall  be 
returned  within  five  days,  and  that  if  the  legislature  by  their 
adjournment  prevent  their  return,  they  shall  be  filed  by  the 
governor,  with  his  objections,  in  the  office  of  the  secretary 
of  state,  within  five  days  after  such  adjournment,  or  become 
laws ;  and  also  that  the  governor  may  disapprove  any  item 
or  appropriation  in  an  appropriation  bill  containing  distinct 
items  in  the  same  manner  that  he  may  disapprove  a  bill,  and 
that  the  items  not  thus  disapproved  shall  have  the  force  and 
effect  of  law  according  to  the  original  provisions  of  the  bill. 

Sections  14  and  15,  art.  VII. 

Wisconsin. 

The  constitution  of  1848  adopts  the  provision  of  the 
United  States  Constitution,  except  that  it  provides  that  bills 
shall  be  returned  within  three  days. 

Section  10,  art.  V. 


57 


SUMMARY. 

Under  the  Constitutions  of  California,  Florida,  Georgia, 
Illinois,  Louisiana,  Maine,  Massachusetts,  Minnesota,  Mis- 
sissippi, New  Hampshire,  Oregon,  South  Carolina,  Texas, 
Virginia,  and  Wisconsin,  a  vote  of  two  thirds  of  each  house 
is  required  to  pass  a  bill  returned  by  the  governor  with  ob- 
jections. 

In  Colorado,  Iowa,  Kansas,  Michigan,  Missouri,  Nevada, 
Pennsylvania,  and  New  York,  a  vote  of  two  thirds  of  the 
members  of  each  house  elected  is  required  to  pass  it. 

In  Nebraska  and  Maryland,  a  vote  of  three  fifths  of  the 
members  of  each  house  elected  is  required  to  pass  it. 

In  Alabama,  Arkansas,  Indiana,  Kentucky,  New  Jersey, 
Tennessee,  and  West  Virginia,  a  vote  of  the  majority  of  the 
members  of  each  house  elected  is  required  to  pass  it  not- 
withstanding such  objections. 

In  Connecticut  and  Vermont,  a  majority  of  each  house  is 
required. 

In  Connecticut,  Indiana,  Iowa,  Kansas,  Minnesota,  South 
Carolina,  and  Wisconsin,  the  bill  must  be  returned  within 
three  days. 

In  Alabama,  Arkansas,  Florida,  Georgia,  Louisiana,  Maine, 
Massachusetts,  Mississippi,  Nebraska,  New  Hampshire,  New 
Jersey,  Nevada,  Oregon,  Tennessee,  Vermont,  Virginia,  and 
West  Virginia,  within  five  days. 

In  Maryland,  within  six  days. 

In  Illinois,  Kentucky,  New  York,  Michigan,  Missouri, 
Pennsylvania,  and  Texas,  within  ten  days,  unless  the  legis- 
lature, by  adjournment,  prevent  its  return. 

In  case  the  legislature  adjourns  within  the  time  thus  given, 
that  time  is  extended  in  Indiana,  Nebraska,  Oregon,  and 
West  Virginia,  by  a  provision  that  the  governor  may  file  the 


58 


bill,  with  his  objections,  with  the  secretary  of  state,  within 
five  days  after  the  adjournment.  In  Arkansas  and  Texas 
the  bill  and  objections  may  be  thus  filed  and  notice  given,  by 
public  proclamation,  within  twenty  days  after  adjournment. 
In  Colorado,  Iowa,  and  Missouri,  and  Pennsylvania,  the  bill 
of  objections  may  be  thus  filed  within  thirty  days  after  ad- 
journment. In  Florida,  Illinois,  and  Nevada,  the  bill  and 
objection  may  be  filed  with  the  secretary  of  state  within  ten 
days  after  adjournment.  In  Kentucky,  Maine,  and  Missis- 
sippi, the  bill  may  be  returned  to  the  house  in  which  it 
originated  within  three  days,  and  in  South  Carolina  within 
two  days  after  the  next  meeting  of  the  legislature.. 

In  New  York  a  bill  may  be  approved  by  the  governor 
within  thirty  days  after  the  final  adjournment  of  the  assem- 
bly, and  no  bill  can  become  a  law  after  such  adjournment 
without  the  approval  of  the  governor. 


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